People v Shaw

 
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1978 WJSC-CCA 902

COURT OF CRIMINAL APPEAL

PEOPLE D.P.P. v. SHAW
CENTRAL CRIMINAL - 3.2.78
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
.v.
JOHN SHAW
1

Judgment of Mr. Justice McMahon delivered on the 22nd day of May 1979 .

2

The applicant John Shaw was charged before Mr. Justice Costello and a jury on three counts relating to the forceable abduction and subsequent murder of one Mary Duffy in the month of September 1976. The charges alleged that Shaw had forcibly abducted Mary Duffy at or near Castlebar on the 22nd of September 1976, that between the 22nd and the 27th of September 1976 he had carnal knowledge of her without her consent and that he murdered her between the same dates. He was convicted on all counts after a trial lasting 14 days and now applies for leave to appeal on the grounds that the trial Judge erred in law in admitting certain evidence.

3

The salient facts of the matter are as follows. On Sunday the 26th of September 1977 at about 11.30 p.m. the Gardai stopped a car at Salthill County Galway and detained the driver a man named Jeffrey Evans and the applicant John Shaw who was a passenger sitting beside the driver. Evans was told that he was being arrested on suspicion of being in possession of a stolen car and Shaw was told that he was being taken to the station for questioning. Shaw was brought first to Salthill Garda Station and then transferred to Galway Garda Station at about 12.30 a.m. on the morning of the 27th September. Before being brought to Galway Station he was interviewed by Superintendent Colleran in Salthill who told him that he believed that the applicant was not giving his correct name and that he would not let him out of custody and that he was detaining him for being in possession of a car that was stolen. Shaw was put in a cell in the Galway Station until Monday morning. There was a sitting of the District Court in Galway on Monday morning at about 10.30 a.m. but Shaw was not brought before the District Justice or before a Peace Commissioner. He remained in the custody of the Gardai until he was produced before a District Justice at Wicklow District Court on Wednesday evening the 29th of September when he was remanded in custody on the present charges and similar charges relating to another girl named Elizabeth Plunkett.

4

When Shaw and Evans were detained by the Gardai at Salthill on the Sunday evening they were wanted for questioning in connection with the disappearance of Elizabeth Plunkett. She was last seen at Brittas Bay in County Wicklow on the 28th of August 1976 and despite extensive searches no trace of her could be found. The names and descriptions of Shaw and Evans had been circulated to all Garda Stations. While the two men were being sought by the Gardai another girl named Mary Duffy disappeared at Castlebar on the 22nd of September and the evidence in the possession of the Gardai indicated that she had been forcibly abducted in a motor car. When Superintendent Colleran interviewed the two men in the Galway Garda Station on the Sunday night he knew that they were the men wanted for questioning in connection with the disappearance of Elizabeth Plunkett but he also suspected that they were connected with the disappearance of Mary Duffy. Superintendent Reynolds who was in charge of the enquiry into the disappearance of Elizabeth Plunkett arrived in Galway Garda Station early on Monday morning and took charge of the interrogation of the two men. Superintendent Reynolds also suspected that Shaw and Evans were connected with the disappearance of Mary Duffy. He thought it unlikely that Elizabeth Plunkett was still alive as so much time had elapsed since her disappearance and extensive searches had disclosed no trace of her. He considered there was a good chance that Mary Duffy was still alive and in that event it might be vital to her safety to discover her whereabouts as soon as possible and he regarded the safety of Mary Duffy as more important than charging Shaw with relatively minor offences in relation to the stolen motor car.

5

Shaw was brought up stairs to a billiard room in the station at about 11.30 a.m. on Monday and he was in this room from 11.30 a.m. to 3.30 p.m. in the presence of Sergeant McCaffrey and Garda Mark Carroll. Shaw stayed silent and refused to talk or answer any questions. At 3.30 p.m. Sergeant Tuohy and Detective Garda Dwyer came into the room and the other Gardai left. Shaw then started talking about general subjects and after some time spoke of his movements at the end of August. He admitted to being in the Brittas Bay area with Evans but denied any knowledge of Elizabeth Plunkett. At 8.30 p.m. the two Gardai left the room and were succeeded by Sergeant Nolan and Garda Kennedy. It was accepted by the defence that up to that time no improper or aggressive questioning had taken place and that the interview was properly conducted by the Gardai. A short time after Sergeant Nolan and Garda Kennedy entered the room Shaw became violent and had to be forcibly restrained. These Gardai left the room at 10.30 p.m.

6

During that time very little questioning of Shaw took place because of his distressed condition. Sergeant Wright and Garda Nolan entered the room at 10.30 p.m. Shaw said nothing to them and was too distressed to talk and at 11.15 p.m. he was brought back to his cell where he remained asleep until 4.00 a.m. on Tuesday morning. At that time he was brought back to the billiard room by Detective Guard O'Connell and Detective Garda Connolly and he made a statement which was reduced to writing by Detective Guard Thomas Connolly and having been read over to the accused he put his mark at the end of it and this act was duly witnessed. The statement is a complete confession of the charges on which he has been convicted. Shaw then made a further verbal statement which amounted to a further confession of having murdered Mary Duffy. Having made the statement which was reduced to writing Shaw agreed to bring members of the Gardai around Connemara and show them where he had put Mary Duffy's body and where he had killed her and said he wanted the body of the girl located so that her parents might bury her. Shaw was then allowed to rest in his cell until about 1.30 p.m. when he went in a car accompanied by a number of Gardai. On Shaw's directions the car stopped at a number of places in Connemara and Shaw showed the Gardai where he had put Mary Duffy's body in Lough Inagh where he had killed her and where he had burned articles of her clothing.

7

On this application it was submitted on behalf of Shaw that the learned trial Judge erred in law in admitting this evidence and that it should all have been excluded on the following grounds namely:-

8

(1) that these statements and admissions by Shaw were not shown to be voluntary.

9

(2) That the statement and admissions were obtained by a conscious and deliberate violation of Shaw's constitutional rights because at the time Shaw was illegally detained and was deprived of his personal liberty otherwise than in accordance with law in breach of article 40 (4) (1) of the Constitution and

10

(3) That there were no extraordinary circumstances to excuse the violation of Shaw's constitutional rights so as to render the evidence admissible under the decision in the People (Attorney General) .v. O'Brien 1965 I.R. 142.

11

Mr. Justice Costello delivered a written judgment dealing with the objections taken on behalf of the accused to the admission of this evidence and in it he reviewed the principles of law which require that a confession must be shown to be voluntary before it can be admitted in evidence. It is a review which was carried out with meticulous care, counsel for Shaw has not suggested that it errs in any respect and this Court accepts it as a correct statement of the relevant principles.

12

Two grounds were advanced on Shaw's behalf in support of the contention that the trial Judge ought not to have been satisfied beyond reasonable doubt that the admissions were voluntary. It was alleged that Shaw had been subjected to physical violence by the Gardai who were with him in the billiard room in the period from 8.30 p.m. to 10.30 p.m. and that this was corroborated by evidence from the Gardai that at the end of that period Shaw was extremely distressed, his face was swollen and discoloured, he had an incipient black eye and he was unfit to make a statement. The learned Trial Judge accepted the evidence of the two Gardai who were with the accused in the billiard room from 8.30 p.m. to 10.30 p.m. as to what took place during that period. He found that shortly after the Gardai entered the room the accused became violent and pushed a table against Sergeant Nolan causing him to fall and then ran with the chair over his head to the end of the room and broke a pane of glass in a cabinet there and that there was a violent tussle while the two Gardai tried to get the accused under control. He accepted the evidence of the two Gardai that no assault took place on the accused such as was alleged in the course of the cross-examination of those witnesses and that the accused suffered injuries to his eyes and face but that these were self-inflicted at the...

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