People v Shaw

• Jurisdiction: Ireland
• Judge: Walsh J.,GRIFFIN J.,KENNYJ.:
• Judgment Date: 01 January 1982
• Neutral Citation: 1981 WJSC-SC 1235
• Date: 01 January 1982
• Docket Number: [S.C. No. 129 of 1979]
• Court: Supreme Court

SHAW v. D.P.P.

BETWEEN

JOHN SHAW

Appellant

and

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

Respondents

1981 WJSC-SC 1235

Walsh J.

Henchy J.

Griffin J.

Kenny J.

Parke J.

129-79

THE SUPREME COURT

1 JUDGMENT delivered on the 17th day of December 1980by Walsh J. CCA - 22.5. 79 CCC - 3.2.78

2 After a trial lasting fourteen days the appellant was convicted in the Central Criminal Court on the 9th February 1978 of the offence of murder and of the offence of rape and of the offence of false imprisonment. The victim in each case was one Mary Duffy. The offence of murder was alleged to have taken place in County Galway as also was the offence of rape. The false imprisonment was alleged to have taken place in County Mayo. The first two offences were laid as having been committed between the 22nd September 1976 and the 24th September 1976 and the third offence was laid as having been committed on the 22nd September1976.

3 On the charge of murder the appellant was sentenced to the mandatory statutory penalty of penal servitude for life and on the charge of rape he was sentenced to a period of fourteen years penal servitude. For the offence of false imprisonment he was sentenced to a period of two years imprisonment. All the sentences were directed to run concurrently from the 9th February 1978. An application for a certificate for leave to appeal to the Court of Criminal Appeal was refused by the trial judge, Mr. Justice Costello.

4 The applicant applied to the Court of Criminal Appeal for leave to appeal against the convictions. For the moment it is not necessary to refer to the grounds which were advanced in support of the application for leave to appeal. It is sufficient to say that on the 22nd May 1979 the Court of Criminal Appeal delivered judgment refusing the application for leave to appeal. That Court granted a certificate of leave to appeal to this Court pursuant to section 29 of the Courts of Justice Act 1924as applied and continued in force by the provisions of the Courts (Supplemental Provisions) Act 1961, section 48. In the certificate given by that Court the point of law of exceptional public importance said to be involved in the decision of that Court was specified as follows:

"Was the continued detention of the accused after 10.30 a.m. on Monday, the 27th September, 1976 being the approximate time at which a District Justice was available, lawful by reason of the obligation on the Gardai to attempt to vindicate the right to life of Elizabeth Plunkett and/or Mary Duffy, and if so, were statements made by the accused on the 27th and 28th September, 1976 admissible for thatreason?"

5 In his notice of appeal to this Court the appellant set out his grounds of appeal which were the same as those grounding his application for leave to appeal in the Court of Criminal Appeal.

6 2 "1. That the provisions of the Constitution did not permit the Garda Siochana to deprive the Appellant of his personal liberty, in the belief that such deprivation might vindicate the constitutional right or rights of another citizen.

7 2. That the learned Trial Judge misdirected himself in law in admitting for the consideration of the Jury, evidence of the Statements and each of them, oral and otherwise, alleged to have been made by the Accused between the hours of 4 a.m. and 12.43 p.m.on Tuesday, the 28th of September, 1976 at Eglington Street Garda Station, Galway, on the grounds:-

8 (a) There was no or no sufficient evidence adduced by the Prosecution to establish the voluntary nature of the said allegedStatements;

9 (b) That the making of the said alleged Statements by the Accused was obtained or procured by the deliberate and conscious violation of the constitutional rights of the accused;

10 (c) That the alleged Statements so obtained or procured in violation of the constitutional rights of the Accused were not rendered admissible by any circumstances, excusatory or otherwise, established by theevidence;

11 3. That the learned Trial Judge misdirected himself in law in admitting for the consideration of the Jury, the evidence of alleged Statements and Acts of the Accused whilst in custody of the Gardai on the journey through Connemara on the afternoon of Tuesday, the 28th of September, 1976 on the grounds:-

12 (a) That the voluntary nature of the said alleged acts and/or Statements of the Accused whilst in custody on the said journey, was not established by the prosecution;

13 (b) That the said alleged Statements and acts of the Accused were obtained and procured by the deliberate and conscious violation of the constitutional rights of the Accused;

14 (c) That the said alleged Statements and acts so obtained or procured in violation of the constitutional rights of the Accused were not rendered admissible by any circumstances, excusatory or otherwise, established by the evidence;

15 4. That the learned Trial Judge misdirected himself in law in submitting for the consideration of the Jury, in response to a request made by the foreman, a typewritten document purporting to contain a record of the evidence given by a Garda witness as to what had been stated to such Garda witness by the Accused, which said typewritten document had not been proved in evidence.

16 Having heard a preliminary objection made by counsel for the Director of Public Prosecutions to the effect that this Court should hear submission relating only to the point specified in the certificate granted by the Court of Criminal Appeal the Court decided to hear submissions on all of the grounds in the notice of appeal which were in fact all of the grounds upon which the application for leave to appeal to the Court of Criminal Appeal was based.

17 Basically the appeal is concerned with the admissibility of certain statements made by the accused on the grounds that there was no or no sufficient evidence adduced by the prosecution in the trial to establish the voluntary nature of these statements. The second point is that even if the statements were voluntary that the circumstances surrounding the taking of these statements and the methods used in taking them constituted a deliberate and conscious violation of the constitutional rights of the accused and therefore were totally inadmissible on that account. The appeal is concerned also with examining the legality of the arrest of the appellant and the keeping of him under arrest during various periods from his original apprehension by the Garda authorities to his first appearance in court.

18 I think it would be best and more convenient at this stage to set out the legal principles which govern the points raised in this appeal and they are as follows.

19 (1) In addition to statutory provisions which make certain offences arrestable without a warrant a member of the Garda Siochana is entitled to, and is indeed bound to, arrest any person in respect of whom he has reasonable grounds for believing that he has committeda felony and to bring him before a court charged with that offence or to release him. Creagh v. Gamble 24 L.R.Ir. 458; People v. Walsh (Sup. Ct. 18.1.1980).

20 (2) No person may be arrested with or without a warrant save for the purpose of bringing that person before a court at the earliest reasonable opportunity. Arrest is simply a process of ensuring the attendance at court of the person so arrested. The exception to this rule provided which appears in the Offences Against the State Act 1939has no relevance to the present case. Dunne v. Clinton 1930 I.R. 366; (and Sup. Ct. unreported); A.G. v. Cox(CCA. 294.1929 unreported); People v. O'Loughlin 1979I.R. 85; People v. Walsh (supra); A.G. v. Higgins 1965 I.R. 374. In addition the Criminal Justice Act, 1951(section 15) provides, that a person charged with an offence shall on arrest be brought before a Justice of the District Court having jurisdiction to deal with it, if a Justice is immediately available. If not, he shall be brought as soon as may be before a Peace Commissioner in the district of such Justice.

21 (3) To effect a lawful arrest the person arrested must be told by the person effecting the arrest the charge upon which he is being arrested unless he otherwise knows the reason for the arrest. In reO'Laighleis 1960 I.R. 93; People v. Walsh(supra).

22 (4) No person may be arrested with or without a warrant for the purpose of interrogation or the securing of evidence from that person. If there exists a practice of arresting persons for the purpose of "assisting the police in their inquiries" it is unlawful. The phrase is in such circumstances no more than a euphemism for false imprisonment. Dunne v. Clinton (supra); People v.O'Loughlin (supra); People v Walsh (supra).

23 In Walsh's case the learned Chief Justice in the course of his judgment said as follows:

"It has been stated many times in our courts that there is no such procedures permitted by the law as "holding forquestioning",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 the citizens."

24 This was the view of the Court. To show that it is not a view peculiar to this Court it is as well to refer to R. v Lemsatef 1977 2 A.E.R. 835 where the view of the Criminal Division of the English Court of Appeal was expressed as follows by Mr Justice Lawton at page 839 of the report:

"The law is clear. Neither arrest nor detention can properly be carried out without the accused person being told of the offence for which he is being arrested. There is no such offence as "helpingthe police with their inquiries". This is a phrase which has crept into use, largely because of the need for the press to be careful about how they report what has happened when somebody has been arrested but not charged. If...