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

• Jurisdiction: Ireland
• 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
• Year: 2021
• Court: Supreme Court

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

Conviction – Possession of cocaine for supply and importation – Retrial – Appellant seeking to appeal against conviction – Whether there should be a retrial

Facts: The appellant, Mr Conroy, was convicted for possession of cocaine for supply and importation at Dublin Port. 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. That section was the subject of a comprehensive judgment by the Supreme Court in The People (DPP) v Power [2020] IESC 13. While the 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 the case, the judgment of the Court of Appeal, dated 30 November 2020, upheld, on the same basis, the conviction of the appellant. By determination dated 12 May 2021, the Supreme Court granted to the appellant further leave to appeal from the judgment of the Court of Appeal: [2021] IESCDET 56. The confession in question, heard by one officer, a verbal admission not under caution and subject to no electronic recording, was denied by the appellant. Hence, an issue arose 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.

Held by the Court that s. 10 of the Criminal Procedure Act 1993 applies where there is a disputed confession and the issue at trial is whether it was made by the accused or not. The Court held that where a confession is disputed and where there is no other evidence tending to demonstrate the involvement of the accused in the commission of the offence, a trial judge should draw attention to the confession and direct the jury as to the absence of such support. The Court held that the support could not consist of the very issue which the prosecution were required to prove; namely the crime alleged. The Court held that the Judges’ Rules apply where a person is detained. The Court held that detention for the purpose of a search, a general power under s. 2 of the Customs and Excise (Miscellaneous Provisions) Act 1988 and under s. 23 of the Misuse of Drugs Act 1977 as amended, constitute vital police powers exercisable on a reasonable suspicion. The Court held that there are other ample police powers as well and these powers enable the gardaí to observe a suspicious situation and to engage in a temporary detention where a suspicion is reasonable, referring to CRH plc v Competition & Consumer Protection Commission [2018] 1 IR 521 at [236] where it is explained that a reasonable suspicion is not an unsupported hunch nor is it bound by the rules of evidence or of hearsay, but is the presence of some ground for rationally thinking a person may be involved in an offence. The Court held that detention for a search, where people are asked questions, and situations where an officer of the law has decided to charge a suspect with an offence, constitute detention within the meaning of the Judges’ Rules. The Court held that a caution is appropriate if asking questions, noting the answer is appropriate, and reading over the answer as soon as practicable is appropriate. The Court held that breaches may be excused, or mis-steps corrected, as the Judges’ Rules themselves indicate within the text. The Court held that how the trial judge may approach the exercise of discretion in this regard is for the trial judge. The Court held that the law had been clarified. The Court held that a wider issue as to spontaneous admissions had been raised but was properly for another case since these points decided this result.

The Court held that there should be a retrial and at trial an appropriate use of s. 10 of the 1993 Act.

Appeal allowed.

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...