Supreme Court: Gang member who murdered Limerick man in case of mistaken identity loses appeal

About this case:

• Judgment:
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The man contended that his confession was inadmissible on three distinct grounds, however the Court was satisfied that the appeal must fail on all issues considered, and that the man’s conviction was safe.

Five of the concurring judges delivered considerable judgments dismissing the appeal which was approved by a 6 to 1 majority, Mr Justice Liam McKechnie dissenting.

Background

The crux of the appeal was the admissibility of the confession statement made by Mr Barry Doyle while in garda custody following his arrest pursuant to s. 4(3) of the Criminal Law Act 1997. In the course of his 15th interview, Mr Doyle admitted to killing Mr Shane Geoghegan, stating “I held a gun, shot him, and chased him and shot him again”; and proceeded to offer his Rosary beads to Mr Geoghegan’s family as a sign of his remorse.

On behalf of Mr Doyle it was argued that, the circumstances of his 15th interview rendered the confession inadmissible as, the confession came about in consequence of an inducement.

The Court heard that the pivotal issue was the arrest of Victoria Gunnery, Mr Doyle’s former girlfriend and mother of their young daughter.

At his trial, issue was raised by the defence that Ms Gunnery’s arrest was used to unfairly induce him to confess to the murder when he otherwise would have remained silent.

In his judgment, Mr Justice Peter Charleton described it as “curious” that part of the supporting evidence for the inducement urged by the defence, was that Mr Doyle’s solicitor had approached the gardaí with an off the record offer that he would confess to the murder of Shane Geoghegan if the gardaí agreed in turn to release Ms Gunnery.

The Court heard that this offer was rejected on the basis that the gardaí wanted Mr Doyle to “tell the truth” and that a confession in such circumstances would not be admissible in evidence.

Presence of a solicitor

The first issue upon which leave to appeal was granted, was whether or not Mr Doyle was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made.

Justice Charleton stated that in The People (DPP) v Pringle; and similarly in Lavery v Member in Charge, Carrickmacross Garda Station 2 IR 390, it was held that it was not possible to infer a constitutional right to have a lawyer present during custodial questioning.

In Pringle it was noted that while the freedom from self-incrimination contained in the Fifth Amendment of the United States Constitution led the US Supreme Court to infer such a right in Miranda v State of Arizona 384 US 436 (1966), there was no similar provision against self-incrimination in the Irish Constitution and thus it was not possible to infer such a right in this jurisdiction.

It was an important factor that since the decision in DPP v Gormley and DPP v White IESC 17, the State introduced a Code of Practice on Access to a Solicitor by Persons in Garda Custody, permitting the presence of a solicitor during interview, if necessary. Also, of importance was the fact that the 15th interview was video-taped.

The Court was satisfied that Mr Doyle consulted with his solicitor prior to the 15th interview. He also received a telephone call from his solicitor during the 15th interview. Thus, his constitutional right of access to legal advice was met. Mr Doyle, in the circumstances of this case, was not entitled to have a solicitor present during the interview.

Damache

The second issue upon which leave to appeal was granted, was whether Mr Doyle, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache 2 IR 266 was delivered on the 23rd February 2012, can rely on that decision on his appeal.

The Damache case concerned a superintendent who signed a warrant to search a person’s home. The Court held that the action of issuing a search warrant was “an administrative act” but one which “must be exercised judicially”; and the result of Damache was a declaration that s. 29(1) of the Offences Against the State Act 1939 was unconstitutional.

Thus on behalf of Mr Doyle, it was argued that the arrest at his home in circumstances where the search warrant used to gain entry was legally invalid resulted in his custody becoming unlawful and any resulting evidence inadmissible.

The Court was satisfied that during the course of Mr Doyle’s trial it is clear that he maintained, or at the very least acquiesced in, the position that the warrant was lawful, as were the actions that followed; namely his arrest, detention and subsequent admissions to the gardaí.

This constituted an acknowledgment that the actions of the gardaí were, at the time, valid and “to entertain the argument that the warrant, arrest, detention and admissions are now unlawful would be unjust”. The issue of retrospective application in A v Governor of Arbour Hill Prison 4 IR 88 also considered, the Court held that Mr Doyle’s appeal could not succeed on this ground.

Threats and inducement

The third issue upon which leave to appeal was granted, was whether statements made by the Gardaí constituted threats or inducements made to Mr Doyle, calculated to extract a confession from him. Moreover, if they did constitute such threats or inducements, whether their effect had “dissipated” or “worn off” by the time of the admissions relied upon by the State.

In his judgment, Justice McMenamin considered the “three-strand test” set out in The People v. McCann 4 I.R. 397 in detail. Concurring with the trial judge, he was satisfied that by implication, the words used by members of An Garda Siochana, objectively viewed, would be capable of amounting to a threat, or a promise; therefore the ‘first strand’ of McCann was satisfied.

Strand 2 of McCann asks whether the accused subjectively understood the inducements? Justice McMenamin accepted that it was “undoubtedly true that there were a number of garda questions and statements in the interviews – and statements from expressing concern regarding his former partner, and their child”. But against that, there were a range of other statements and conduct constituting prima facie evidence in favour of the prosecution case, which suggested an entirely different motivation, i.e. regret for the crime which “was most graphically illustrated by gesture with the rosary beads”.

Thus there was a significant body of evidence to conclude that the second strand subjective test in McCann had not been made out.

Strand 3 of McCann asks whether, the confession, in fact, resulted from the threat or promise? Justice McMenamin stated that in truth, there was no factual evidence which would support this stand being answered in the affirmative.

As a matter of fact, a very considerable period of time elapsed between the last of the inducements, and the confession; and his time was interrupted by consultations with the solicitor, and by the telephone conversation which interrupted Interview 15 – therefore the question of dissipation was one of fact, and Justice McMenamin was satisfied that this ground too must fail.

Concluison

In all of the circumstances, the Court was satisfied that Mr Doyle’s conviction was based upon a confession of his guilt, supported by significant independent evidence. Thus, the appeal dismissed by 6 to 1 majority, Mr Justice Liam McKechnie dissenting.