Verbal statements not admissible

 

DPP -v- Breen

Court of Criminal Appeal

Judgment was given by Mr Justice Fennelly on December 16th, 2008. Composition of court: Mr Justice Fennelly, Mr Justice Budd, Mr Justice Hanna

Judgment

Verbal statements allegedly made by the applicant while held on the ground by members of An Garda Síochána during an operation should not have been admitted in evidence. Therefore the applicants appeal against conviction for possession of a firearm was quashed. A retrial was not ordered.

Background

The applicant was convicted of possession of a firearm by the Dublin Circuit Criminal Court on October 15th, 2007 and sentenced to seven years imprisonment. He appealed both conviction and sentence.

The incident giving rise to his conviction was an apparent attempt to break into a house in Templeogue. The applicant was the owner and driver of a car that was under observation by members of the Special Detective Unit and the National Bureau of Criminal Investigations, acting on confidential information. He had two passengers in the car.

All three men entered the driveway of number 61 Knocklyon Road, two of them walking towards the door and the applicant approaching the window.

At this point gardaí converged on the house. One of them had an Uzi submachine gun. They caused a loud bang as a distraction device. The applicant ran across the lawn of the house, where he was told to lie down. He did so, and both he and the other two men were overcome by gardaí and detained. However, they were not immediately arrested.

The applicant was handcuffed and placed lying down on the ground. While in that position he was searched by Det Garda John Keane of the Emergency Response Unit. Garda Keane found a pair of gloves, a black woollen balaclava, a set of car keys and a mobile phone. The applicant claimed at his trial that the balaclava was planted on him.

While on the ground he was asked a number of questions by Garda Keane. The garda did not have a notebook with him, and later made a note of the questions and answers on an A4 sheet of paper when he returned to the office.

According to Garda Keane, the applicant told him he did not have a gun, and when asked where the firearm was, replied: “It’s in the bag.” The garda also said he acknowledged ownership of the balaclava. He said that the applicant also said that his car was “full of stuff out of the house”.

The applicant was then arrested and brought to Rathfarnham Garda station.

The firearm found in the bag was subsequently examined by the Garda ballistics section and found incapable of discharging pellets or darts. However, according to the ballistics section it fell within the description in section 4 (1) (f) of the Firearms and Offensive Weapons Act 1990.

After his arrest the applicant was questioned extensively, based on Garda Keane’s notes of the earlier exchange, but exercised his right to remain silent, either saying nothing or “no comment” in response to questions.

A voir diretook place during the Circuit Court trial, in the absence of the jury, when counsel for the applicant objected to the admission of the verbal statements allegedly made to Garda Keane.

His counsel said that there was an issue in relation to the applicants status when he made the statements, and also that there had been breaches of the Judges’ Rules and general unfairness and oppression.

The Circuit Court ruled that there had been no non-compliance with the Judges Rules, and that the applicant had been given an opportunity to say that the answers to the questions were wrong.

Counsel for the applicant appealed this on four grounds: the verbal answers allegedly given to Garda Keane while he was lying on the ground should not have been admitted; the jury were made aware that he had exercised his right to silence by saying “no comment”; the firearm found was not a firearm as defined in the legislation; and the learned trial judge was wrong in law in failing to direct the jury regarding the absence of any corroboration of the verbal statements attributed to the applicant.

Decision

Considering the issue of the verbal answers to Garda Keane, Mr Fennelly said that “they were certainly given in highly unusual circumstances . . . He had been searched after caution and no weapon was found on him. He was then asked a number of highly material questions, without his being arrested either for charge or for detention pursuant to any of the various statutory powers available to them (the gardaí).”

While acknowledging that the gardaí are entitled to subdue people for their own protection and that of the public, he added: “However, the gardaí should not have questioned the applicant for the purposes of gathering evidence in the circumstances of this case. At that point, the applicant had been overcome. It had been established by the search that he had no weapon in his personal physical possession. The gardaí should have arrested and detained him pursuant to their statutory powers before engaging in any questioning.”

Without ruling explicitly on the lawfulness of the applicant’s detention, he said that the applicant was under physical restraint, lying face down and handcuffed, and the gardaí were armed with Uzi submachine guns. “He was not arrested. Yet he was not free.

“This combination of circumstances leads the court to the conclusion that the evidence of the questioning of the applicant should not have been admitted.”

The court ruled in favour of the applicant on the first ground of appeal. It was therefore unnecessary to consider the other grounds. It allowed the appeal and quashed the conviction.

Aileeen Donnelly SC and Michael Bowman BL, instructed by Michael Hanahoe Co. Solicitors, for the applicant; Lisa Dempsey BL, instructed by the Chief Prosecution Solicitor, for the DPP.