Travers v Ryan
| Jurisdiction | Ireland |
| Judge | Finlay P. |
| Judgment Date | 01 January 1985 |
| Neutral Citation | 1984 WJSC-HC 1771 |
| Court | High Court |
| Docket Number | No. 16SS./1984 |
| Date | 01 January 1985 |
BETWEEN:
and
1984 WJSC-HC 1771
THE HIGH COURT
Subject Headings:
CRIMINAL LAW: suspect
EVIDENCE: admissibility
EVIDENCE: meaning
Judgment delivered on the 24th day of February1984by Finlay P.
This is a consultative case stated by District Justice James O'Sullivan pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961he being a Justice assigned to the Dublin Metropolitan District.
It arises out of a charge preferred against the Defendant that he did "between 1.30 p.m. on the 14th December 1982 and 2.00 a.m. on the 15th December 1982 having entered as a trespasser a building known as 20 Anner Road, Inchicore in the Dublin Metropolitan District steal one Olympic Radio/Cassette Recorder therein the property of John Harte". This was, of course, a charge pursuant to the provisions of Section 23 (a) of the Larceny Act, 1916 as inserted by the Criminal Law Jurisdiction Act, 1976.
From the case stated it appears that at the conclusion of the evidence for the prosecution, the Solicitor acting on behalf of the Defendant applied for a direction and it was at that stage that the learned District Justice without the request of either party directed that the charge shouldbe adjourned until the questions submitted by him to this court had beenanswered.
A summary appearing from the case stated of the evidence given on behalf of the prosecution may thus be tabulated.
1. John Harte, the owner of the cassette/radio gave evidence of the disappearance of his property from the premises at Anner Road. Upon being asked by the prosecuting Garda whether he had given permission to any person to be on his premises on the days or at the times during which the property had apparently been removed, he twice answered "I gave no one permission to break in".
2. The Defendant at the time of the alleged offence was 14 years of age having been born on the 12th April 1968. He was arrested apparently in the presence of his father on the 1st January 1983 by the prosecuting Garda who gave evidence of that arrest. At the time of the arrest, his father advised his son not to make any statement to the Gardai.
3. The Defendant was then brought to the Garda Station and cautioned but was not informed of his right to have either of his parents present at any interview between him and the Gardai. No attempt was made by the Gardai to secure the presence in the Garda Station during the course of their interrogation of the Defendant of either of his parents both being alive. Theprosecuting Garda then interviewed the Defendant and the Defendant made a statement dealing with the alleged offence. The contents of this statement are not indicated to me in the case stated, as would appear to me to be proper but by implication since it formed the only proof tendered before the learned District Justice of the involvement of the Defendant in the crime, I assume it to have been incriminatory incharacter.
4. The prosecuting Garda who had effected the arrest and had taken the statement stated in evidence that he did not wish to have the father of the Respondent present during questioning or during the taking of a statement for fear that he, the father, might attempt to obstruct justice. He based this fear on the statement made by the father to the Defendant at the time of the arrest. This witness further stated in evidence that the Defendant's mother was unavailable to come to the Garda Station but does not appear to have suggested that he requested from her whether she wished to come or not.
On that evidence, the learned District Justice has raised the following matters for consideration by the High Court -
(a) may a conviction be entered on a charge under Section 23 (a) of the Larceny Act, 1916 as inserted by Section 6 of the Criminal Law Jurisdiction Act, 1976which charges that an accused having entered as atrespasser on named premises and stolen property therein if the owner of such premises did not state in his evidence that he gave no person permission to be on those premises but states only that he gave no-one permission to break into his premises?
(b) Is the statement of the prosecutor (that is, the prosecuting Garda) that he feared that the father of the Respondent might obstruct the course of justice a sufficient reason for not allowing him to be present during the taking of a statement?
(c) In view of the fact that an accused person is not obliged to say anything to a Garda, would the fact that a parent or guardian might advise a young person being questioned by the Garda to say nothing constitute an obstruction of justice?
(d) Where a garda fears that one parent of a young person might obstruct the course of justice, should he seek the attendance of the other parent at the questioning or the taking of a statement from the young person?
(e) Is a Garda obliged before questioning a young person of 14 years of age in addition to the usual caution to all accused persons to further caution or inform that young person that he or she is entitled to have a parent or guardian present during the questioning or the taking of any statement?
The first question here raised deals with an entirely different topic from the remaining four. I will deal firstly with the question of the evidence of Mr. Harte.
A trespasser within the meaning of...
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