People v Kelly (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1983
• Date: 01 January 1983
• Docket Number: [C.C.A. No. 72 of 1981]
• Court: Supreme Court

The People v. Kelly (No. 2)

The People (at the Suit of The Director of Public Prosecutions)

and

Eamonn Noel Kelly

[C.C.A. No. 72 of 1981]

Court of Criminal Appeal

Supreme Court

Criminal law - Evidence - Admissibility - Statement of accused - Detention of suspect - Release and re-arrest - Whether a voluntary statement - Role of appellate court - Power of police to interrogate suspect while being detained - Courts of Justice Act, 1928 (No. 15), s. 5 - Interpretation Act, 1937 (No. 38), s. 11 - Offences Against the State Act, 1939 (No. 13), ss. 30, 52.

Sub-section 1 of s. 30 of the Act of 1939 authorises a member of the police force to interrogate and arrest a person whom the member suspects of having committed an offence under that Act. Sub-section 3 provides that the arrested suspect may be removed to and detained in a police station, a prison or some other convenient place for an initial period of 24 hours and, if a chief superintendent of police so directs, for a further period of 24 hours. Section 52 of the Act of 1939 provides that a member of the police force may demand of a suspect so detained, during his detention, a full account of his movements and actions during a specified period and all information in his possession in relation to the commission by another person of any offence under the Act of 1939.

At 9.55 a.m. on the 5th April, 1976, the appellant was arrested pursuant to s. 30 of the Act of 1939 and detained first in a police station in the county of Wicklow and later in two police stations in the city of Dublin. The directive authorising his continued detention for a further period of 24 hours described him as being in the second Dublin police station, which was a true description at the start of the further period but was untrue when the document was issued. Early on the 7th April the appellant made two verbal incriminatory statements; no written record was made of the first statement and the appellant did not sign the record of the second statement, being breaches of r. 9 of the Judges' Rules. At 4.15 a.m. on the 7th April the appellant dictated a comprehensive incriminatory statement and signed the record of that statement. On the authority of a detective sergeant the appellant was released at 5.30 a.m. from his detention under s. 30 of the Act of 1939. Immediately thereafter the appellant was arrested at common law and held in custody until 10.30 p.m. on the 7th April, 1976, when he was brought before the District Court and charged with having stopped a mail train with intent to rob the mail. The appellant had made a fourth statement, being of minimal importance, during the afternoon of the 7th April.

At his subsequent trial on indictment by a Special Criminal Court, the appellant was convicted and sentenced to serve 12 years penal servitude. His main defence had been that his statements were inadmissible in evidence since they had been made under duress while in the custody of the police. At the hearing of the appellant's application for leave to appeal it was

Held by the Court of Criminal Appeal (Finlay P., Henchy and Barrington JJ.), in dismissing the application, 1, that the circumstances of the removal of the appellant to a second and then to a third police station during the period of his detention pursuant to s. 30 of the Act of 1939 were not such as to render his detention unlawful at any time during that period.

2. That the findings of fact by the court of trial that the incriminatory statements of the appellant had not been induced by force, the threat of force or oppressive interrogation were supported by the evidence at his trial, and that there were no grounds which would justify an appellate court in setting those findings aside.

The People v. Madden [1977] I.R. 336 considered.

3. That the judges of the court of trial had exercised their discretion correctly in allowing evidence of the appellant's first two statements to be given notwithstanding the breaches of r. 9 of the Judges' Rules, since the material in them was substantially the same as the material in his third statement.

4. That the provisions of s. 52 of the Act of 1939 do not affect the right of a member of the police force to interrogate a person while he is being detained pursuant to s. 30 of that Act.

5. That the appellant's release from his detention pursuant to s. 30 was a valid release.

6. That, even if the appellant had not been brought before the District Court at the first practical opportunity after his arrest at common law on the 7th April, 1976, there had been no miscarriage of justice since his fourth statement had been of minimal probative value.

7. That the directive authorising the appellant's detention for a further period of 24 hours was a valid directive for that purpose.

At the hearing of the appellant's appeal to the Supreme Court pursuant to a certificate of the Court of Criminal Appeal, it was

Held by the Supreme Court (O'Higgins C.J., Walsh, Griffin, Hederman and McWilliam JJ.), in disallowing the appeal, 1, that the dismissal by the Court of Criminal Appeal of the appellant's application should be affirmed for the reasons stated by that court.

2. (Ruling the point of law certified by the Court of Criminal Appeal) That the provisions of s. 30, sub-s. 3, of the Act of 1939 and s. 11 of the Interpretation Act, 1937, authorise the detention of a suspect in police stations, prisons and other convenient places successively.

3. The mere fact that answers or statements are given or made by a suspect in response to questions posed by a policeman does not render those answers or statements inadmissible in evidence at the trial of the suspect.

The Queen v. Johnston (1864) 15 I.C.L.R. 60 and The People (Attorney General) v.Calvin[1964] I.R. 325 approved.

Cases mentioned in this report:—

¹ The People v. Kelly [1982] I.R. 90.

² The People v. McNally and Breatnach (Court of Criminal Appeal: 16th February, 1981).

³ The People v. Madden [1977] I.R. 336.

⁴ The People v. Pringle and Others (Court of Criminal Appeal: 22nd May, 1981).

⁵ Dunne v. Clinton [1930] I.R. 366.

⁶ The People v. Walsh [1980] I.R. 294.

⁷ The People v. Farrell [1978] I.R. 13.

⁸ The State (Walsh) v. Maguire [1979] I.R. 372.

⁹ The Emergency Powers Bill, 1976 [1977] I.R. 159.

¹⁰ Tuck v. Priester (1887) 19 Q.B.D. 48.

¹¹ In re H.P.C. Productions Ltd. [1962] Ch. 466.

¹² Inspector of Taxes v. Kiernan [1981] I.R. 117.

¹³ The People v. Brady and Others (Court of Criminal Appeal: 25th July, 1980).

¹⁴ Northern Bank Finance v. Charlton [1979] I.R. 149.

¹⁵ R. v. Turnbull [1977] Q.B. 224.

¹⁶ R. v. Cooper [1969] 1 Q.B. 267.

¹⁷ R. v. Edkins & Knowles (1973) 57 Cr. App. R. 751.

¹⁸ R. v. Hunter [1974] Q.B. 95.

¹⁹ R. v. Smith [1973] 1 W.L.R. 1510.

²⁰ Stafford v. Director of Public Prosecutions [1974] A.C. 878.

²¹ R. v. Pattinson (1973) 58 Cr. App. R. 417.

²² Coghlan v. Cumberland [1898] 1 Ch. 704.

²³ Mersey Docks & Harbour Board v. Procter [1923] A.C. 253.

²⁴ Benmax v. Austin Motor Co. [1955] A.C. 370.

²⁵ R. v. Johnston (1864) 15 I.C.L.R. 60.

²⁶ The People (Attorney General) v. Galvin [1964] I.R. 325.

²⁷ The People (Attorney General) v. C. [1943] Ir. Jur. Rep. 74.

²⁸ The People (Attorney General) v. Murphy [1947] I.R. 236.

²⁹ The People (Attorney General) v. Manning (1954) 89 I.L.T.R. 155.

³⁰ The Attorney-General v. McCabe [1927] I.R. 129.

³¹ R. v. Middleton [1975] Q.B. 191.

³² Director of Public Prosecutions v. Ping Lin [1976] A.C. 574.

³³ The People (Attorney General) v. Byrne [1974] I.R. 1.

³⁴ Watts v. Indiana (1949) 338 U.S. 49.

³⁵ Chariot Inns v. Assicurazioni Generali [1981] I.R. 199.

Criminal Appeal.

The appellant, Eamonn Noel Kelly, was tried jointly with two co-accused (Brian McNally and Osgur Breatnach) on indictment by a Special Criminal Court on charges that they had stolen mail-bags and had stopped a mail train with intent to rob the mail, contrary to s. 12 of the Larceny Act, 1916. At the trial of the appellant he gave evidence that certain incriminatory statements that had been made by him during his detention pursuant to s. 30 of the Offences Against the State Act, 1939, had been procured by ill-treatment inflicted on him by members of the Garda Síochána during their interrogation of the appellant. Those statements constituted the sole evidence against the appellant at his trial. Having heard the testimony of several witnesses regarding the circumstances in which the appellant had made his statements, the judges of the Special Criminal Court rejected the evidence of the appellant and allowed evidence of his statements to be adduced by the prosecution. The appellant was convicted of the said offences on the 15th December, 1978, and he was sentenced to serve 12 years penal servitude. The appellant was convicted and sentenced in absentiabecause he had absconded to the United States of America on the 11th December, 1978.

The appellant's co-accused, McNally and Breatnach, were also convicted and sentenced to terms of penal servitude. They applied to the Court of Criminal Appeal for leave to appeal against their convictions, alleging that incriminatory statements made by them had been obtained by duress. On the 22nd May, 1980, the Court of Criminal Appeal (Finlay P., Henchy and Barrington JJ.) granted the co-accused leave to appeal, treated the said applications as the hearing of appeals and allowed the appeals. On the 16th February, 1981, the Court of Criminal Appeal gave the reasons for allowing the appeals of the co-accused. McNally's appeal was allowed because the court was not satisfied that the court of trial had exercised its discretion correctly when allowing evidence to be given of the verbal statements of that accused despite breaches of the Judges' Rules. The appeal of Breatnach was allowed because the court was not satisfied that certain statements made by him were voluntary statements.

The appellant returned to Ireland on the 3rd June, 1980. In July, 1980, the...