People v Kelly
1982 WJSC-CCA 1913
COURT OF CRIMINAL APPEAL
Judgment delivered on the 2nd day of April 1982 by Finlay P.
This is an application for leave to appeal against the conviction of the Applicant by the Special Criminal Court on the 15th of December 1978 of the offence of stealing mail-bags and of the offence of stopping a mail, to wit a train, with intent to rob the mail. In respect of each of these offences he was sentenced to 12 years penal servitude.
The Applicant who was on bail during his trial before the Special Criminal Court absconded prior to the conclusion of the trial and did not lodge any application for leave to appeal within the time limited. His application under 0.86 Rule.8 to this Court for enlargement of the time limited was refused, but the Court gave a certificate that its decision raised a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. On the hearing of that appeal it was held that this Court had applied the wrong criteria for determining whether time should be enlarged. The Supreme Court held that in the circumstances the application for enlargement of time should be granted.
A total of 14 grounds of appeal were originally submitted and in the submissions lodged on behalf of the Applicant pursuant to the directions of this Court, permission was sought to argue two additional grounds. This permission was during the currency of the hearing of the appeal granted by the court. Some of the grounds of appeal were withdrawn at the hearing and others were argued collectively.
The crimes of which the Applicant was convicted are the same as those dealt with by this Court in the case of The People (D.P.P.) .v. McNally and Breathnach, so it is unnecessary to repeat in this judgment the statement of the facts of the train robbery which are to be found in the judgment of this Court in that case.
The evidence incriminating the Applicant in the commission of the crime tendered before the Court of Trial consisted solely of confessions made by the Applicant while in the custody of the Garda Siochána when he had been arrested pursuant to Section 30 of the Offences Against the State Act, 1939and when he had been re-arrested at common law after being released from that arrest. The grounds of appeal argued before this Court under one heading or another were all directed towards the proposition that the Court of Trial had erred in law and on the facts in ruling that these confessions were admissible in evidence.
The submissions fell into two main categories. Firstly, it was contended that findings made by the Court of Trial that the confessions were not induced by violence or by threats of violence or by unfair methods including breaches of the Judges” rules were not supported by the evidence and were in the legal sense of the word perverse and should be corrected by this Court. The second main category under individual headings was an assertion that at various times relevant to the making of the confessions by the Applicant his detention was unlawful and that, accordingly, confessions made by him constituted evidence obtained in breach of his constitutional rights or without regard to basic fairness of procedures.
Notwithstanding submissions made to the contrary on behalf of this Applicant, the Court is satisfied that it must approach the findings of fact made by the Court of Trial in accordance with the principles set out in the decision of this Court in The People .v. Madden 1977 I.R. and adopted and applied by this Court in The People .v. McNally and Breathnach (unreported) delivered the 16th of February 1981.
The relevant finding made by the Court of Trial was in the following words.
"The Court is satisfied beyond all reasonable doubt that the statements alleged to have been made by the Accused were made by the Accused voluntarily and were not made as a result of any assaults, ill-treatment or improper methods employed by members of the Garda Siochána or any of them, and that the injuries of which he subsequently complained were not inflicted by any member of the Garda Siochána. The court is further satisfied that the questioning of the Accused though protracted and continuous over long periods was not oppressive and did not overbear or lessen the will of the Accused so as to render the statements or any of them involuntary. The Court is further satisfied that the Accused offered to undertake the journey to the scene of the robbery, to Ballymore Eustace and Bray, and having been duly cautioned prior to embarking on the said journey went voluntarily. The Court is further satisfied that the Accused went voluntarily to Harcourt Terrace Garda Station having been duly cautioned and accepts the evidence of Detective Inspector Richard Murphy and Detective Garda Michael Mullen with regard to what transpired there including the administering of further cautions."
This court has carefully considered the evidence on which these findings of fact were made and is satisfied that bearing in mind the onus of proof which was on the prosecution in regard to these matters, the Court of Trial was on that evidence entitled to reach these findings of fact and that this Court can not now interfere with those findings.
The Applicant was arrested at approximately 9.55 a.m. on the morning of Monday the 5th of April. He was firstly taken for a short time to Arklow Garda Station having been arrested in Arklow and was then brought to Fitzgibbon Street Garda Station in Dublin. From 12.00 noon until approximately 12.00 midnight on that day he was interviewed and interrogated by members of the Garda Siochána. During all of those interviews, he denied participation in the crime and gave an exculpatory account of his movements on the night when the crime was committed. He was given appropriate refreshment and meals during the period of this questioning. Having spent a short time in bed in Fitzgibbon Street Garda Station, he was transferred to the Bridewell Garda Station at approximately 12.30 a.m. on the morning of the 6th of April where he spent the night. He was again questioned by members of the Garda Siochána at the Bridewell Garda Station between 9.30 a.m. and 1.00 p.m
From 1.00 p.m. to 3.00 p.m. he was on his own in a cell in the station. Between 3.00 p.m. and 6.30 p.m. he was again questioned by members of the Garda Siochána. From 6.30 p.m. to 9.00 p.m. he again spent in a cell on his own. He was brought again to a room in the station at 9.00 p.m. and further questioned by members of the Garda Siochána.
At approximately 11.30 p.m. he made an admission of having overheard the planning of the robbery but not of involvement in it. This admission was made after caution. He was again cautioned after midnight on the morning of the 7th of April and advised to tell the truth and shortly before 1.30 a.m. he asked to be left alone. Approximately 15 minutes later he called in members of the Garda Siochána who had been interviewing him and made an oral admission of a detailed kind of participation in the crime. He subsequently repeated this admission after caution and agreed that notes of his account of his participation which had been taken down and which were read over to him were correct. He then offered to go on a journey with members of the Garda Siochána, firstly, to Ballymore Eustace to show them a house where he believed the money had been put which had been obtained in the robbery and secondly, to a place in the Bray area where he believed that guns used in the robbery were to be found.
He expressed a hope that this cooperation would lessen the sentence he would receive for the crime though this was not promised to him and he expressed a desire to carry out the journey during the hours of darkness.
At approximately 4.15 a.m. he was asked if he would be prepared to make a written statement of the admissions already made by him and he was cautioned. He then dictated a full written statement of his participation in the crime and upon that being read over to him, he signed it, initialled where corrections had been made and it was witnessed by the members of the Garda Siochána who were present. He was released from custody under Section 30 of the Offences Against the State Act, 1939at approximately 5.30 a.m. and re-arrested at common law in Chancery Street outside the Bridewell Garda Station. He was then again cautioned with regard to the proposed journey and was given the option of having a sleep before the journey commenced. He chose to go on the journey at that time and went with members of the Garda Siochaána, stopping to obtain refreshments at a cafe and travelling to Ballymore Eustace and from there to Bray. During the course of this journey, he pointed out various places around Ballymore Eustace associated with the commission of the crime and pointed out a place at Bray where he stated he believed the guns could be found. Neither money nor guns were recovered as a result of this journey. He then returned to the Bridewell Garda Station at 11.00 a.m. and after refreshment was put in a cell and had a rest. On the same afternoon, he was brought between 4.00 and 5.00 p.m. to Harcourt Street Garda Station with his consent and asked to confirm to a fellow suspect, Michael Plunkett, that he had made a...
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