The People (at the suit of the DPP) v Aidan Conroy

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton
• Judgment Date: 26 July 2021
• Neutral Citation: [2021] IESC 48
• Docket Number: Supreme Court appeal number: S:AP:IE:2021:000013 Dublin Circuit Criminal Court record number DUP0392/2017

Between

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

Prosecutor/Respondent

and

Aidan Conroy

Accused/Appellant

[2021] IESC 48

[2020] IESC 000

[2019] IECA 00

MacMenamin J

Dunne J

Charleton J

Baker J

Woulfe J

Supreme Court appeal number: S:AP:IE:2021:000013

Court of Appeal Record Number: A:SP:IE:2018:000293

Dublin Circuit Criminal Court record number DUP0392/2017

An Chúirt Uachtarach

The Supreme Court

Judgment of Mr Justice Peter Charleton delivered on Monday 26 July 2021

1 The issues arising on this appeal concern confessions to crime, their reliability, the safeguards as to taking and recording such confessions, and how a jury should be instructed by the trial judge where the confession or its recording is contested. Section 10 of the Criminal Procedure Act 1993, provides, where a confession is uncorroborated, for the mandatory delivery to a jury from a trial judge of a warning to have due regard to the absence of such corroboration. This section is the subject of a comprehensive judgment by O'Malley J in The People (DPP) v Power [2020] IESC 13. While this case was tried when that judgment was not available to the Circuit Criminal Court, in Dublin in October 2018, the trial judge ruling that no warning was required in the circumstances of this case, the judgment of the Court of Appeal dated 30 November 2020, McCarthy J, upheld, on the same basis, the conviction of the accused for possession of cocaine for supply and importation at Dublin Port. The confession in question, heard by one officer, a verbal admission not under caution and subject to no electronic recording, was denied by the accused. Hence, an issue arises as to the Power case and how it may properly be interpreted, and as to the Judges' Rules and their application to situations of temporary detention for search.

Determination

2 By determination dated 12 May 2021, this Court granted to the accused further leave to appeal from the judgment of the Court of Appeal and specified that the appeal was as to “significant issues” that arose “as to the potential application of s 10 [of the Criminal Procedure Act 1993] in cases of this nature” related to warnings to the jury by the trial judge where a confession was not corroborated; [2021] IESCDET 56. The parties, however, have treated this appeal as encompassing the Judges' Rules, fairness and the proviso in addition. The case management judge assented.

Circumstances

3 Since the order of this Court will be for a retrial of the accused, the background facts, all of which will have to be found by a jury into the future, will necessarily be referenced with circumspection. The accused, Aidan Conroy, is a truck driver. He arrived in Dublin Port on 20 August 2015. He was driving a lorry and a trailer. Apparently, as a professional driver, he owns the cab to which a refrigerated trailer load of fruit was attached. In the normal course of events, the driver of such a cab may not have been expected to have loaded that fruit or perhaps closely supervised its loading. Customs were in possession of some confidential information, apparently, or else drew on some other unspecified reasonable suspicion. Briefly, they told the accused that they suspected the possession of controlled drugs under the Misuse of Drugs Acts 1977 to 2017 and as to offences under the Customs Code and legislation; that is not in issue. He and his lorry and trailer were to be detained under s 2 of the Customs and Excise (Miscellaneous Provisions) Act 1988; again, the legality of this is not in issue. The accused was brought to what is called “the detention room” and supervised. Meanwhile the truck and trailer were thoroughly searched. Cocaine was found in two places: the trailer among the fruit and in a fire extinguisher situated in the driver's cab. An initial test, prior to proper analysis by the Forensic Science Laboratory in Phoenix Park, indicated by reagent that the powder found was cocaine. That was later confirmed.

4 Customs officers returned to the detention room and one of the officers said to the accused: “Come on, I've something to show you.” It is not to be ruled that showing an accused who may be charged with a possession offence the relevant contraband, is an aspect of fairness, or in any way implies that there is a right to be told about the circumstances, which in an interview will arise anyway. But it is worth noting that there is nothing unfair about confronting a suspected possessor with what he or she is thought to have possession of and it is not unfair to ask about the circumstances. What is in issue here is whether a caution was called for and the central contest which grounds this appeal is as to the ensuing conversation on the way from the detention centre over towards the cab and trailer. The accused is alleged to have said: “You found the drugs then.” This was heard by one officer only, not by any other accompanying person. That declaration against interest is denied by the accused. Despite that denial, an issue arose at the trial as to whether, if said, the definite article might have been absent from the alleged admission or whether, as supposedly later recounted by one officer to another, it might have been: “So, you found drugs so.” No useful or appropriate comment may be made on any such issue here or as to the conditions of noise or lack thereof or proximity of persons which might explain any asserted anomaly or that only one person heard whatever the admission was. It suffices that these are jury matters. The issue is as to the proper approach to the admission of the alleged statement and as to, if admitted, any warning which might attach to it from the trial judge in instructing the jury. The officer did not write down the alleged statement then, the accused as a detained person had not been cautioned against self-incrimination and his words were written down later and put to him only in an interview later in the day.

5 There was no warning about uncorroborated confessions to the jury from the trial judge. Section 10 of the 1993 Act was not part of the charge. While the Judges' Rules were argued at trial, the trial judge admitted the words of the accused in evidence. In terms of the building blocks of the prosecution case, these were: the drugs in the fire extinguisher in the cab, the drugs in the trailer, the alleged admission by the accused, certain text messages sent by the accused, scientific analysis of the cocaine and the amount and purity thereof, and the overall circumstances from which possession might be inferred or rejected by the jury. Perhaps it might be possible, no comment is appropriate, to argue that the nature of the text messages support the alleged admission to knowing there were drugs in the cab. That is a matter for the trial and for the trial judge. The accused went into evidence in his own defence and explained the text messages and gave a detailed account of his work activities and this importation in particular and denied the alleged admission; with what degree of cogency this Court can have no idea and makes no comment. In the event, the jury convicted on the cocaine in the cab but not in the container. Did the Judges' Rules apply to the alleged confession? Should there have been a warning? Those are the central issues in the case.

The Court of Appeal

6 The Court of Appeal dismissed the appeal. No warning was necessary about the statement heard by only one officer. It was fine. There was no breach of the Judges' Rules. McCarthy J said as to the Judges' Rules:

14. It was contended in the first instance that the appellant was in custody in as much as he could not have left the waiting area or customs building had he sought to do so. The contention of the appellant that this was so, that is to say, he was under an obligation to remain pending the search, has not been questioned. It is said when Officer Griffin approached the appellant and told him he had something to show him in the vehicle such a statement or request was, in reality, a question. Thus, it is contended that a caution should have been administered. This is because of the provisions of rule 3 of the Judges Rules, which is as follows:-“Persons in custody should not be questioned without the usual caution being first administered.”

15. It seems to us that there is no breach of that rule. Even if one were to proceed on the basis that the appellant was in custody (which does not appear to be contested notwithstanding the singular position of persons asked to await the conclusion of a search for the purpose of clearing customs) he was not questioned. Mr Gageby has sought to characterise the words spoken by Officer Griffin to him, the tenor of which was to invite him to look at the fire extinguisher containing the cocaine, as constituting a question. We do not think that it bears this complexion. Were he, of course, to be questioned about it a caution would have been requisite if in custody. It simply does not arise on the facts.

16. It is also submitted that a breach occurred of Rule 9, which is as follows –“Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish”

17. The purpose of this rule was identified by O'Higgins CJ. in the People (DPP) v Pringle (1981) 2 Frewen 57, as follows:-“It seems clear that this Rule, which, of course is not a rule of law but rather an admonition for the carrying out of fair procedures of interrogation, was designed to achieve a situation which (a) there would be accuracy in the recording of any statement made to be achieved by the early writing down of it so as to obviate errors of recollection and (B) in which an accused person would, at a time when he should have sufficient memory of what he had said, beginning opportunity of...