Court of Criminal Appeal allows appeal where unlawfully obtained evidence excludes conviction for violent disorder.

COURT OF CRIMINAL APPEAL

59/04 & 65/04

McCracken J

Murphy J

Peart J

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

Dermot Laide and Desmond Ryan

Appellants

Judgment of the Court delivered on the 24th day of February 2005 by McCracken J.

___________________________________________________________

Dermot Laide and Desmond Ryan, together with two other accused, Andrew Frame and Sean Mackey, were jointly charged

with two counts and were tried before a jury in a trial which lasted from 13th January 2004 to 15th March 2004 before the

Dublin Circuit Criminal Court.

Count Number 1 charged them with “manslaughter contrary to common law”, and the particulars of offence was stated

as:-

“Andrew Frame, Dermot Laide, Sean Mackey and Desmond Ryan did on the 31st day of August 2000 at Sussex

Road in the County of the City of Dublin unlawfully kill one Brian Murphy.”

The second count charged them with “violent disorder contrary to s.15 of the Criminal Justice (Public Order) Act 1994”.

The particulars of offence were given as:-

“Andrew Frame, Dermot Laide, Sean Mackey, and Desmond Ryan, on the 31st day of August 2000 present

together, at Sussex Road, in the County of the City of Dublin, committed violent disorder in that you used, or

threatened to use unlawful violence and such conduct, taken together, was such as would cause a person of

reasonable firmness present at the said place to fear for his or another persons safety.”

The manslaughter charge against Andrew Frame was withdrawn from the jury by the learned trial Judge and he was

subsequently acquitted of violent disorder by the jury. The jury found Desmond Ryan not guilty of manslaughter but guilty

of violent disorder. In the case of Sean Mackey, the jury disagreed on the charge of manslaughter and found him guilty of

violent disorder and in the case of Dermot Laide the jury found him guilty of manslaughter and of violent disorder. From

those findings, Dermot Laide and Desmond Ryan have appealed to this Court.

General Background

For the purpose of this judgment it is not necessary to consider the incident which gave rise to these prosecutions in any

great detail, and indeed the evidence of some fifty witnesses was at times confusing and contradictory. It appears that as

patrons were leaving Annabel’s Nightclub in the Burlington Hotel in Dublin in the early hours of 31st August 2000 a fight, or

several fights, broke out, which probably were initiated by some name calling and jeering. In the course of the fight, one of

the protagonists, Brian Murphy, was set upon, punched, pushed to the ground and kicked while he was on the ground and

sadly he died in hospital shortly afterwards. The whole incident took place in a very short period of time, perhaps as little as

fifteen or thirty seconds, and most of the witnesses had consumed considerable quantities of alcohol during the evening. At

the time the four accused were 18 or 19 years of age, as was Brian Murphy. The gardaí took a large number of statements

from various witnesses, including the four accused, and their statements figure largely in this appeal.

Grounds of Appeal of Dermot Laide

Dermot Laide puts forward three propositions as encapsulating all of his various grounds of appeal. They are:-

A. The trial Judge failed to ensure that he received a fair trial, having regard to the outcome of the process to edit his co-

accuseds’ statements.

B. The jury’s verdict against him is unsafe in the light of:-

I. Prejudicial media coverage prior to the trial.

II. Prejudicial media coverage during the trial.

III. Prejudicial media coverage of submissions made in the course of a voir dire held in the absence of the jury.

C. The trial Judge’s charge to the jury on the issue of common design was defective and apt to mislead.

The Editing of Statements

In the course of questioning by the gardaí each of the accused made statements which it was sought by the Respondent to

put into evidence. As is frequently the case in circumstances such as this, some of the statements tended to implicate one or

more of the co-accused. In particular, Sean Mackey said in the course of one of his statements:-

“I hit him in the head area knocking him backwards. I didn’t see him fall to the ground from that blow,

because at this stage Dermot Laide joined in the fight and I remember Dermot Laide throwing punches at him

hitting Murphy in the head, while Murphy was falling back. Des Ryan also joined in but I can’t remember him

hitting Murphy. Murphy fell to the ground after the blows from Dermot Laide. Dermot Laide then kicked

Murphy while he was on the ground, then I gave him one kick while he was on the ground and I am satisfied

that it wasn’t to his head. I stood off after that. I can’t remember seeing Murphy getting anymore kicks but a

general melee broke out at this stage and I remember Des Ryan, Dermot Laide, Andrew Frame being involved

in the melee.”

In a later statement he said:-

“I punched him with my closed fist in the head area knocking him backwards. I didn’t see him fall to the

ground from that blow because at this stage Dermot Laide had joined in the fight. I remember Dermot Laide

throwing punches at him hitting Murphy on the head. He hit Murphy a number of times in the head while

Murphy was falling back towards the ground. I would say that I saw Dermot Laide hit Brian Murphy about the

head with four or five punches. They were hard punches, he is a big dude and he was giving it his all ….

Brian Murphy fell to the ground after the blows from Dermot Laide. It looked to me that Dermot Laide was

holding Brian Murphy with his left hand and punching him with his right hand, before Brian Murphy

collapsed to the ground. Dermot Laide punched Brian Murphy a number of times while Brian Murphy was

collapsing and falling back onto the ground and while Brian Murphy was on the ground. Dermot Laide then

kicked Murphy while he was on the ground. I am not sure exactly where he kicked him.”

Much of what was contained in these statements went well beyond the prosecution case being made against Dermot Laide.

In particular, and this is central to this appeal, the prosecution did not allege or lead any evidence to establish that Dermot

Laide kicked Brian Murphy while he was on the ground or that he kicked him in the head. On the contrary, the prosecution

at all times very fairly said that they could not establish who had kicked Brian Murphy. It is also of great relevance that in

his evidence the State Pathologist, Professor Harbison, said that he could not establish whether any, or which, particular

blow or kick led to the death of Brian Murphy, but he gave it as his professional view that it was more likely that the fatal

strike was a kick rather than a blow.

When it was sought to introduce Sean Mackey’s statements into evidence, Counsel for Dermot Laide asked, in the absence

of the jury, that these statements should be edited to ensure that matters prejudicial to his client were not put before the

jury. Counsel for Sean Mackey opposed the idea of editing and said that the entire statements should go to the jury. The

prosecution also opposed the editing of the statements, although it was accepted by all parties, as is the case, that a

statement by one co-accused, as opposed to evidence by that co-accused, is not admissible as evidence against another co-

accused. There are, of course, many cases in which such statements are put before a jury, and any possible injustice can be

dealt with by proper directions from the Judge. In the present case, however, it was argued on behalf of Dermot Laide that

this was far too serious a matter to be dealt with simply by instructions from the Judge to the jury.

There was considerable legal argument, in the absence of the jury again, as to the desirability of editing and, if editing was to

take place, the method to be used. In the course of the argument, Counsel for Sean Mackey suggested that the problem

could be dealt with by separate trials for each of the accused and Counsel for Dermot Laide said that he would very

reluctantly but necessarily support an application for severance if the learned trial Judge felt that he could not satisfactorily

achieve fairness for his client while at the same time preserving the rights of the co-accused.

The learned trial Judge ruled that there would have to be some form of editing and ruled that, where necessary, the name

“Dermot Laide” would be replaced by “Mr A”. The learned trial Judge said in the course of his ruling:-

“The Court after very careful consideration took the view that in respect of material relating to Dermot Laide

in relation to evidence which was not adduced by the prosecution, specific evidence, that Mr Laide kicked

Brian Murphy when he was on the ground. Because the jury will have the statement and the memos of the

interview of Mr Mackey in the jury room with his name on it, I was seriously concerned that the gaps would

be filled in by the jury in that particular matter and that a warning to the jury in respect of that particular

matter would not be effective, so in those very limited circumstances the Court has considered editing.”

The learned trial Judge also ruled that it was not a suitable case for separate trials, and that even if he had been asked to

grant separate trials before the commencement of the trial, he would have refused to do so.

It should be said that the preferred form of editing as far as Dermot Laide was concerned was to excise the entire passages

or sentences about which he was concerned, and his second preference was to replace “Dermot Laide” with some phrase

such as “another person”. In due course, however, the learned trial Judge determined that he would simply replace Dermot

Laide’s name with “Mr A” where he considered it necessary to prevent Dermot Laide’s defence from being prejudicial.

When the details of the editing were determined by the learned trial Judge, Counsel for Andrew Frame raised the question of

the possibility of the jury thinking that “Mr A” was in fact his client, and Counsel for Dermot Ryan expressed similar fears.

Both Counsel then asked that they be permitted to cross-examine the garda witness who had produced the statements in

order to elicit that “Mr A” was not their respective client. The learned trial Judge ruled that such cross-examination would

be permissible. Counsel for Dermot Laide again suggested that certain of the sentences in the statements could be totally

excised, but the learned trial Judge refused to do so.

In due course the statements were put in evidence in the manner suggested by the learned trial Judge and the jury were

given copies of the edited statements. The portions of the statements which have been referred to earlier in this judgment as

edited read:

“I hit him in the head area knocking him backwards. I didn’t see him fall to the ground from that blow,

because at this stage Dermot Laide joined in the fight and I remember Dermot Laide throwing punches at him

hitting Murphy in the head while Murphy was falling back. Murphy fell to the ground after the blows from

Dermot Laide. Mr A then kicked Dermot Murphy while he was on the ground, then I gave him one kick while

he was on the ground, and I am satisfied that it wasn’t to his head. I stood off after that. I can’t remember

seeing Murphy getting any more kicks but a general melee broke out at this stage and I remember three

individuals being involved in the melee.”

The other statement then read:

“I punched him with my closed fist in the head area knocking him backwards. I didn’t see him fall to the

ground from that blow because at this stage Dermot Laide had joined in the fight. I remember Dermot Laide

throwing punches at him hitting Murphy on the head. He hit Murphy a number of times in the head while

Murphy was falling back towards the ground. I would say that I saw Dermot Laide hit Brian Murphy about the

head with four or five punches. They were hard punches, he is a big dude and he was giving it his all. Brian

Murphy fell to the ground after the blows from Dermot Laide. It looked to me that Dermot Laide was holding

Brian Murphy with his left hand and punching him with his right hand, before Brian Murphy collapsed to the

ground. Mr A punched Brian Murphy a number of times while Brian Murphy was collapsing and falling back

onto the ground and while Brian Murphy was on the ground. Mr A then kicked Murphy while he was on the

ground. I am not sure exactly where he kicked him…. I can’t remember Brian Murphy getting anymore kicks,

but a general melee broke out at this stage, and I remember three individuals being involved in the melee.”

In the course of the cross-examination of the garda witness, it was duly established that Mr A was not Andrew Frame and

was not Desmond Ryan. Counsel for Dermot Laide was then placed in a totally invidious position. He could not ask a

similar question in relation to his client, because Mr A was Dermot Laide. On the other hand, by not asking the question, the

jury could clearly draw the inference that Mr A was Dermot Laide. This Court is quite satisfied that there was not only a

very real risk, but a probability that the jury would and did draw such an inference.

It has been strenuously urged on the Court that, certainly at the stage when the problem became obvious, the learned trial

Judge ought to have ordered separate trials, at least to the extent that the present trial should have continued either against

Dermot Laide alone with a separate trial for the other three accused, or alternatively against the other three accused with a

separate trial for Dermot Laide. Counsel for the prosecution had urged that this was not a suitable case for separate trials for

a number of reasons, and that in any event such a question only arose on the twenty-first day of the trial, and that if any of

the Defendants had wished for a separate trial, they should have sought it before the commencement of the trial itself. The

Court heard considerable arguments as to the circumstances in which a separate trial should be granted, and indeed as to the

power or duty of the learned trial Judge to grant a separate trial even if it has not been requested by one of the parties. The

Court feels that such arguments are really missing the point and it is not necessary to resolve them in this judgment.

The fact remains that the jury had before it the statements of Sean Mackey and probably were aware of the identity of “Mr

A”. The learned trial Judge in his charge to the jury did not, of course, advert to the problem in these terms. Even if he had,

it would have been very difficult to have given adequate warnings. The jury had before it expert evidence from Professor

Harbison that the probability was that Brian Murphy died as a result of a kick to the head. While they had general evidence

that an unidentified person or persons had kicked him on the head while he was on the ground, Sean Mackey’s statement

constituted the only possible identification of any of the four accused as having actually done so.

At this stage it should be repeated that another ground of appeal on behalf of Dermot Laide is that the learned trial Judge did

not adequately charge the jury in relation to the concept of common design. It is accepted that he fully explained the

elements of common design, but the criticism is that he did not instruct the jury as to how to apply the legal theory to the

facts of the case. The Court is faced with the difficulty which frequently arises namely that a jury does not give reasons for

its decision. However, as the concept of common design was clearly explained to the jury, the Court feels it probable,

primarily because of the fact that only Dermot Laide was convicted of manslaughter, that the jury did not convict him on

the basis of common design, but on the basis of his own actions. If that is so, and it is a real possibility, and the jury

accepted Professor Harbison’s opinion, then there is again a real possibility that they convicted Dermot Laide because they

believed that he was the person who kicked Brian Murphy. They could only have reached this conclusion from the

statements of Sean Mackey.

In his charge to the jury the learned trial Judge set out clearly the general principles applicable to the use of statements of co-

accused in joint trials. He said:-

“However, and it is absolutely essential that you understand this, where a reference is made by an accused in

his statement which refers to the role of another accused person in the alleged offence, that is not evidence

against the person and must be entirely disregarded by you, and could only arise if that person making the

statement gave sworn evidence in the jury box. It would be entirely unjust when considering a statement of one

accused and deciding on his guilt or innocence, to use the information in that statement about another

accused as evidence against that accused. When you consider the statements and memo of interviews of each

of the accused, you should apply the evidence in those statements to the guilt or innocence of that particular

person and no other. Feel free to rely on all matters in those statements in respect of the guilt or innocence of

the maker of those statements and not otherwise.”

This is, of course, a perfectly correct, clear and lucid statement of the law. However, in the peculiar circumstances of this

case, where statements of Dermot Laide’s co-accused have been edited in the way in which they were edited, and where,

notwithstanding the editing, it is probable that the jury in fact identified Dermot Laide as Mr A, this Court feels that a

general warning of that nature was not sufficient. The learned trial Jude ought to have realised that the jury would identify

Mr A, and ought to have given them a specific warning in relation to the references to Mr A. The Court accepts the

contention of Counsel for Dermot Laide that, once Mr A had been identified, his position would in fact have been better had

the statements gone before the jury unedited, as the unsuccessful attempts to hide the identity of Dermot Laide in fact only

sought to highlight the portions of the statements that implicated him.

The Court therefore concludes that, whatever may be the rights and wrongs of the various decisions taken by the learned

trial Judge in relation to these statements, the fact remains that there is a very real risk that they influenced the jury in

reaching the verdict of guilty of manslaughter. Under those circumstances, the Court rules that the conviction of Dermot

Laide for manslaughter is unsafe and should be set aside. However, the Court does not believe that the circumstances are

such as to direct an acquittal on the manslaughter charge, as the jury may have reached their conclusion without regard to

Sean Mackey’s statements, and the Court will accordingly direct a re-trial on the charge of manslaughter.

In relation to the charge of violent disorder, the same considerations do not apply. There was ample evidence that Dermot

Laide was a participant in the fighting which took place, and that he struck Brian Murphy a number of times. The Court

does not believe that the admission of Sean Mackey’s statements in the form in which they went to the jury could have led

to an unfair trial in this regard.

Media Coverage

In view of the Court’s decision in relation to the editing of the statements, it is not necessary to consider the impact of the

media reporting on the question of manslaughter. It does fall to the Court to consider the question briefly in relation to the

charges of violent disorder against both of the Appellants.

A trial Judge has a wide range of discretion in deciding whether an accused can get a fair trial where there is adverse

publicity in the course of the trial. The Court of Criminal Appeal in The People (DPP) v. Nevin [2003] 3 IR 321 suggested

that the exercise of judicial discretion would not be interfered with unless it was clearly wrongly exercised. Moreover, it has

to be assumed that juries will take seriously any directions or guidance given to them by the trial Judge.

In the present case the trial Judge clearly took the matter of adverse publicity seriously during the course of the trial and in

relation to the charging of the jury. He gave a general warning:

“You have to put aside your sympathies, any strong views you may have, and the only matters you should

consider are the evidence of all the witnesses and the exhibits.”

Then, before dealing with the onus and standard of proof and summarising the evidence, the trial Judge referred to the issue

of publicity in the following terms:

“On the opening day of the trial, Mr Comyn, on behalf of the Director of Public Prosecutions, drew your

attention to the issue of publicity. I addressed this issue again with you a few days later. I had to revisit the

matter on the 23rd January 2004, when I made an order regulating the coverage of this trial. I have been

concerned about the nature of some of the publicity which has gone beyond what I consider appropriate and in

some circumstances has distorted the actual evidence given at the trial. I have already advised you to

disregard any material you have read about this trial and to concentrate only on the evidence given in the

witness box in this trial. Can I further state that you are under no pressure whatsoever to come to any

particular verdict. If you are not satisfied of guilt beyond reasonable doubt, you must acquit. You must not feel

that there is any climate of coercion by media publicity to direct you in any way. You must at all times remain

bound by your oath to come to a fair determination in accordance with the evidence.”

In the early days of the trial, in response to complaints by Counsel for the Defendants as to the nature of some of the

reporting in the public press, the learned trial Judge directed or restricted the jury by saying they should not read colour

pieces in the press. In the light of the enormous publicity which was afforded to this case, that was an eminently proper

direction to them.

In relation to the lesser charge of violent disorder, the Court is quite satisfied that the warnings and directions given to the

jury by the learned trial Judge were adequate and that this ground of appeal is not sustainable.

The Court should also pass comment on the nature of the reporting in two publications, namely that a report was made of

evidence given before the Court in a voir dire in the absence of the jury. Such reporting is an extremely serious matter which

can pervert the course of justice and this Court is very pleased to note that the learned trial Judge dealt with it as such.

However, the Court is also satisfied that, as these reports took place at an early stage of a lengthy trial, it is highly unlikely

that they would have influenced the findings of the jury.

Charge in Relation to Common Design

As the manslaughter charge against Dermot Laide is being set aside this ground of appeal does not arise.

Ground of Appeal of Desmond Ryan

The applicant, Desmond Ryan, contends that his detention pursuant to s.4 of the Criminal Justice Act, 1984 in a Garda

Station on the 26th September 2000 in the aftermath of his arrest at his home earlier that morning was unlawful, and that as

a result the memos of interview with the applicant which were recorded by An Garda Siochana during that period of

unlawful detention were not admissible at his trial and ought to have been excluded by the learned trial Judge.

Unlawful Arrest and Consequences Flowing Therefrom:

It has been submitted to the Court that significant evidence which the jury was asked to consider in relation to the applicant

comprised these memos of interview. An application to have these memos of interview excluded was made to the trial Judge

and was refused. For reasons which will be set out in due course, the trial Judge was satisfied that the arrest of the applicant

at his home on the morning of the 26th September 2000 was lawful, and that as a result his detention subsequent thereto

was lawful, and that accordingly the memos of interview were admissible and should go to the jury for their consideration.

The basis for the contention that his said detention was unlawful is that at the time he was arrested by Detective Sergeant

John Doyle at 6.50am that day, the team of Gardaí were trespassers in the Ryan house when the arrest took place, there

being no lawful basis for their presence in the house. The circumstances giving rise to that contention are unusual, but result

from a finding of the learned trial Judge that the search warrant on foot of which the Gardaí gained entry to the Ryan house

that morning was bad.

On the 25th September 2000, Detective Superintendent Coburn had applied to District Judge Hussey for a search warrant

under the provisions of s.10 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, so that a search could be carried

out of the house in Cunningham Road, Dalkey, County Dublin where Desmond Ryan resided with his parents.

The purpose of the search was to find a pair of black shoes with a buckle on them, which apparently had been described by

some witnesses to the events of the night in question as being worn by one of the persons involved in the row which led to

the death of Brian Murphy.

The application for the search warrant was granted, and, according to the evidence of Detective Sergeant Doyle, on the

evening of the 25th September 2000 Detective Inspector Coburn handed to him the warrant, explaining that the warrant was

in relation to those shoes, and told him to execute the warrant with the intention of finding these shoes. Detective Inspector

Coburn also gave evidence of having obtained the search warrant following the application to Judge Hussey and that on the

evening of the 25th September 2000 he gave it to Detective Sergeant Doyle for execution.

On the following morning the 26th September 2000, Detective Sergeant Doyle called to that house at 6.40am with the

search warrant in his possession, along with a team of four other Gardaí. He stated in his evidence at the trial that he was

admitted to the house by Mr Ryan (the applicant's father) and that he identified himself to Mr Ryan, read over the search

warrant to him and also showed him a copy of the warrant. Both Mr and Mrs Ryan accompanied Detective Sergeant Doyle

and other Gardaí to the bedroom of Desmond Ryan. Detective Garda Sexton searched for and located the buckled shoes

and took possession of them. Detective Sergeant Doyle says that he then asked Desmond Ryan to identify what clothing he

had been wearing on the 31st August 2000. The applicant duly identified and handed over the clothing in question including

a pair of runners which he said he was wearing on the night.

It was at this point at 6.50am that Detective Sergeant Doyle arrested Desmond Ryan for the murder of Brian Murphy, and

cautioned him in the usual manner. In response, Desmond Ryan stated that he understood the reason for his arrest and

caution. Following this arrest, he was conveyed to Harcourt Terrace Garda Station, arriving there at 7.20am. Detective

Sergeant Doyle requested Sergeant Cowan, the member in charge at Harcourt Terrace Garda Station, to detain him under

s.4 of the Criminal Justice Act, 1984 for the purposes of the proper investigation of the offence. An interview followed

which commenced at 7.32am. That interview ended at just past 9.10am. At the conclusion of the interview the notes of

interview were read over, and Desmond Ryan was asked if they were correct and he confirmed that they were and he

signed them, as did Detective Sergeant Doyle and Detective Sergeant Gallagher who was present also.

At 12.35pm, an extension of the detention was authorised by Superintendent Phillips of Donnybrook Garda Station, and the

member in charge at Harcourt Terrace was informed of this fact. Further interviews took place during the course of that

day, and in addition Desmond Ryan consented to hair and blood samples, as well as fingerprints, being taken and at 6.35pm

he was released from detention.

When Detective Sergeant Doyle was cross examined at the trial by Mr Patrick Gageby SC on behalf of Desmond Ryan, he

confirmed that his intention when calling to the Ryan house on the 6th September 2000 was to look for the particular shoes

with the ornate buckle on the front of them.

The evidence of Detective Garda Gallagher who was part of the team with Detective Sergeant Doyle also stated that after

they had been admitted to the Ryan house, Detective Sergeant Doyle explained to Mr and Mrs Ryan that they were there to

execute the Search warrant, and that it was read over and explained to them, whereupon they were shown to Desmond

Ryan’s bedroom where the search was carried out, and he was also present when Desmond Ryan was arrested at 6.50am

for the murder of Brian Murphy. Similar evidence was given by the other members of the search team, namely Detective

Sergeant McHale (who was still a Detective Garda on the date of the search), and Garda Sexton.

Following submissions to the trial Judge on behalf of Desmond Ryan to the effect that the search warrant was bad, the trial

Judge so decided. It is accepted by both parties before this Court that his decision was correct. He then went on to consider

what consequences flowed from his finding that the search warrant was bad. In relation to the submission made by Mr

Gageby that the arrest of Desmond Ryan was unlawful, the trial Judge concluded the issue in the following way:

“In this case I am satisfied beyond a reasonable doubt from the evidence of Detective Sergeant Doyle and his

evidence to Sergeant Cowan that it was the intention of An Garda Siochana as well as the search to effect the

arrest of Mr Ryan for reasons other than any evidence that they may find as a result of the search. That is

clearly set out in the grounds advanced to Sergeant Cowan which did not refer in any way to the matters

which were legally seized at the premises.”

The Court is satisfied that there is nothing in the evidence given at the trial by Detective Sergeant Doyle which indicates any

intention on his part or other members of the Gardaí who attended at the Ryan house on the morning of the 26th September

2000 to do anything there other than execute the Search Warrant. He was asked:

“Were you detailed to go to a particular place to carry out a particular task?”

He replied:

“I was in possession of a search warrant issued under section 10 Miscellaneous Provisions Act 1970 to search

that dwelling.”(sic)

He also indicated that the warrant had been given to him by Detective Inspector Coburn on the previous day. He went on to

went on to state:

“It authorized me to search Ardfallen, Cunningham Road, Dalkey, Co. Dublin.”

He also stated the following:

“…I had spoken to Detective Inspector Coburn on the evening of the 25th, and he handed me the warrant,

explained to me that the warrant was in relation to a pair of shoes that had an ornamental buckle on same,

and these shoes had been described by witnesses as being worn by a person in the row that lead to the death of

Brian Murphy, and he told me to execute the warrant with the intention of finding these shoes.” (our emphasis)

In his own evidence, Superintendent Coburn confirmed that on the evening of the 25th September 2000 he gave the search

warrant to Detective Sergeant Doyle for execution. There is no mention of him requesting Sergeant Doyle to do anything

other than execute the search warrant.

The only other reference to arrest in the evidence of Detective Sergeant Doyle was at the very end of his direct evidence

when he was asked:

“Can I just ask you in relation to the arrest of Mr Ryan, why did you arrest Mr Ryan?”

He replied:

“Because I believed that he would have been involved in the fracas which led to the death of Brian Murphy.”

Nothing contained in his cross-examination added anything to the evidence as to the stated purpose of the visit to the house

on that morning, namely the execution of the search warrant.

The other matter stated by the learned trial Judge to have been the basis for his being satisfied beyond a reasonable doubt

that the intention of the Gardaí was to arrest Desmond Ryan, is Detective Sergeant Doyle’s “evidence to Sergeant Cowan”,

who was the member in charge at Harcourt Terrace Garda Station when Desmond Ryan was brought there following his

arrest. In this regard, Detective Sergeant Doyle stated in his evidence that shortly after he arrived at the station he had a

conversation with Sergeant Cowan and requested him to detain Desmond Ryan under s.4 of the Criminal Justice Act, 1984.

He stated that he explained to Sergeant Cowan that Desmond Ryan had been involved in a fracas which lead to the death of

Brian Murphy. He had been identified by witnesses as having been at the scene and had also made a statement himself. He

went on to explain to Sergeant Cowan that he required his detention “for the proper investigation of the offence”. He

stated that Sergeant Cowan agreed to this request and detained Desmond Ryan at 7.26am that morning. Interviews

followed. There does not appear to be anything further in the evidence of Sergeant Doyle or “his evidence to Sergeant

Cowan” to indicate any intention on the part of the Gardaí to arrest Desmond Ryan that morning at his house, in addition to

executing the search warrant.

Sergeant Cowan stated in his own evidence that Desmond Ryan arrived at Harcourt terrace Garda Station in the custody of

Sergeant Doyle having been arrested for murder. He stated that Sergeant Doyle requested his detention under s.4 of the

Criminal Justice Act 1984 and the reason given for that request was that Desmond Ryan had made a statement and that

others had made statements implicating Desmond Ryan further in the incident than he himself had explained in his

statement. Sergeant Cowan went on to state that he considered that he had reasonable grounds for detaining Desmond Ryan

under s.4 and that he explained to him that he was detaining him for the purpose of the proper investigation of the crime for

which he had been arrested. In answer to Mr Gageby in cross examination, Sergeant Cowan confirmed that he made his

decision to detain Desmond Ryan only on the basis of what he had been told by Detective Sergeant Doyle.

The learned trial Judge having found that the search warrant was bad, nevertheless found that it did not follow that the

arrest of Desmond Ryan at the house was unlawful.

Dealing with the submission made on behalf of Desmond Ryan that if the search warrant was bad the Gardaí were then

trespassers in the house, having no other lawful authority to be in the house at the time of the arrest, the learned trial Judge

determined that the Gardaí had in any event a power to enter the Ryan house in the absence of the search warrant for the

purpose of making the arrest by virtue of s.6(2) of the Criminal Justice Act, 1997 which provides:

“s.6(2) – For the purpose of arresting a person without a warrant for an arrestable offence, a member of the

Garda Siochana may enter, if need be by the use of force, and search any premises including a dwelling where

that person is or where the member with reasonable cause suspects that person to be, and where the premises

is a dwelling the member shall not, unless acting with the consent of the owner, or other person who appears

to the member to be in charge of the dwelling, enter that dwelling unless (a)………(d) the person ordinarily

resides at the dwelling.” (our emphasis)

It was submitted in this appeal that the trial Judge was wrong in so holding that s.6(2) entitled them to be on the premises on

this occasion. It was submitted that if the Gardaí were lawfully present in the house by virtue of this provision, there would

have to be evidence that they went to the house for the purpose of arresting Desmond Ryan, since s.6 commences with the

words “For the purpose of arresting………” and in addition it would be necessary in his submission that the particular

power available under s.6 be specifically invoked by the Gardaí prior to gaining entry to the house, if that power was going

to be relied upon.

Mr Gageby submitted that the evidence given at the trial is all to the effect that the purpose of the visit to the Ryan house on

the morning of the 26th September 2000 was to execute the search warrant, as instructed by Superintendent Coburn, and

that upon arrival at the house that was the sole purpose of the visit explained to Mr and Mrs Ryan, and that they were

therefore admitted to the house for that purpose only, and specifically not for the purpose of arresting Desmond Ryan. He

submits that there is no evidence upon which the learned trial Judge could, as he has stated, have been satisfied beyond a

reasonable doubt or otherwise, that they went to the house not only to execute the search warrant but also to arrest

Desmond Ryan.

In as much as the learned trial Judge also justified his conclusion based upon anything which transpired between Detective

Sergeant Doyle and Sergeant Cowan at Harcourt Terrace Garda Station, Mr Gageby has submitted, notwithstanding that

there is nothing in that evidence in any event which can avail the prosecution in this regard, that it is not possible for

anything which happened subsequent to the arrest to legitimise an earlier unlawful arrest. It follows, in his submission, that

once the search warrant was found to be bad, the Gardaí had no lawful authority to be present in the Ryan house, and that

their presence in that house was in breach of his constitutionally protected right to the inviolability of the dwelling. Being

therefore trespassers, the submission is that the arrest of Desmond Ryan and his subsequent detention were unlawful, and

that therefore any statements or interviews taken while in such unlawful detention ought not have been admitted into

evidence at the trial.

The Court has been referred to ample authority for the proposition that the dwelling of the citizen is inviolable save in

accordance with law, and in addition to the judgment of Hamilton P (as he then was) in Byrne v. Grey [1988] IR 31 where,

adopting the remarks of Lord Diplock in R v. IRC, ex parte Rossminster Limited [1980] AC 952, to the effect that any

provisions authorising entry into and search of houses should be construed in a manner which is least restrictive of an

individual’s common law rights – and in Ireland, least restrictive of the individual’s constitutional rights.

Mr Gageby has also referred to the remarks of Carney J in DPP v. Dunne [1994] 2 IR 537 at pp 540-541 where that

learned Judge expressed the view that where the constitutional protection of the dwelling was to be set aside, the justification

for so doing would have to be set out in “clear, complete, accurate and unambiguous terms”. His submission in the present

case is that if the power of entry relied upon by the prosecution to justify the presence of the Gardaí in the house on the

26th September 2000 (aside from the search warrant) is s.6(2) of the Criminal Justice Act, 1997, that power ought to have

been specifically invoked by them at the time of entry, and explained in “clear, complete, accurate and unambiguous

terms” to Mr and Mrs Ryan, and that in the absence of such explanation, the power cannot be deemed to have been

invoked and consequently any evidence gained as a result of such unlawful entry - a breach of a constitutional right - must

be excluded.

In aid of this submission, Mr Gageby has also referred the Court to the judgment of Finlay CJ in The People (DPP) v.

Kenny [1990] 2 IR 110 where at page 133 he states as follows:

“As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the

invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the

principle which is likely to provide a stronger and more effective defence and vindication of the right

concerned.

To exclude only evidence obtained by a person who knows or ought reasonably to know that he was invading a

constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from

acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his

conduct is or is not constitutional.

To apply on the other hand, the absolute protection rule of excluding whilst providing also this negative

deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and

detection service of the State to consider in detail the personal rights of the citizens as set out in the

Constitution and the effect of their power of arrest, detention, search and questioning in relation to such

rights.

It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and

positive force is likely to protect the constitutional rights in more instances than is a principle with negative

consequences only."

It has been submitted that the power conferred on a member of An Garda Siochana by s.6(2) of the 1997 Act is a significant

incursion into the constitutional right of the citizen to the inviolability of his dwelling, and that if that member does not

explain the basis of his entry of the dwelling as being for the purpose of arrest, the citizen is deprived of any basis or

opportunity to form a view as to whether he ought to submit to the entry. The Court has been referred to a passage from

the judgment of Henchy J in DPP v. Gaffney [1987] IR 173 at page 181 as follows:

“On the basis of the relevant facts (which are set out in the judgment of Walsh J) I am satisfied that it is

impossible to disturb the finding of the District Justice that the gardaí who entered the defendant's house and

arrested him had not been invited by him to enter. The crucial question then is, were they trespassers? For if

they were, the arrest was unlawful and in consequence the prosecution must fail. That follows because, as was

pointed out by Lord Scarman in Morris v Beardmore [1981] AC 446 at p 463:-

"When for the detection, prevention or prosecution of crime Parliament confers upon a constable a power or

right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend

no further than its express authorisation."

The pertinent rights given to members of the Garda Siochana by the Road Traffic Acts -- and in particular the

right of arrest without warrant given by s 49, sub-s 4 of the Act of 1961 -- are substantial invasions of the

personal rights enjoyed before the enactment of those provisions and there should not be attributed to

Parliament an intention that such personal rights were to be curtailed further than the extent expressed in the

statute. In other words, the right of arrest given should not be construed as extending to the infringement of

any fundamental right other than the right of freedom from arrest without warrant by a member of the Garda

Siochana.

Where, as in this case, a member of the Garda Siochana purports to make an arrest without warrant in the

defendant's dwelling, the power of arrest relied on, in the absence of any express statutory extension of that

power authorising an arrest without warrant in a citizen's dwelling, must be construed subject to the

defendant's right to the inviolability of his dwelling. As far as this State is concerned, the defendant's common

law right to the inviolability of his dwelling (namely to be free from intrusion save where authorised by law)

has been elevated to a constitutional guarantee by Article 40, s 5, of the Constitution and has been recognised

as a fundamental right by article 8 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms. It follows that if the arresting member of the Garda Siochana is in the dwelling

unlawfully (ie, as a trespasser) at the time of the arrest, the arrest is unlawful.”

In the same case, the Court notes that in his judgment, McCarthy J at page 184 referred to the fact that “where the

dwelling of a citizen is entered by the gardaí or other forces of the executive, in my opinion the burden lies upon the

entrant to prove that the inviolability of that dwelling has not been breached.”

Edward Comyn SC, on behalf of the Respondent to this appeal has submitted that the fact that the search warrant was

found to be bad does not mean that everything else falls. He has relied upon the power of entry contained in s.6(2) of the

1997 Act to which the Court has already referred and set out. He also relies upon what is stated by O’Flaherty J, albeit by

way of obiter dictum, in DPP v. Owens [1999] 2 IR 16, namely that although in that case the gardaí entered the

respondent’s house by producing a search warrant, they would have been equally entitled to enter the respondent’s home,

peaceably and without force to effect an arrest pursuant to s.4 of the Criminal Justice Act, 1984, provided they had the

requisite suspicion to do so.

In so stating, O’Flaherty J referred to the judgment of Kenny J in The People (AG) v. Hogan, 1 Frewen 360 where that

learned judge stated the following:

“Article 40.5 of the Constitution which is in that part of it which has the heading 'Fundamental Rights' and

the sub-heading 'Personal Rights' reads: "The dwelling of every citizen is inviolable and shall not be forcibly

entered save in accordance with law". The guarantee is not against forcible entry only. The meaning of the

article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law

which may permit forcible entry.

The guard had not a warrant which authorised him to arrest the accused or to search the caravan and he had

not implied permission to enter it. As a guard he had authority to arrest the accused without having a warrant

if a felony had been committed and if he had reasonable grounds for suspecting that the accused had

committed it. He was investigating a felony, breaking and entering, and he entered the caravan to arrest the

accused for this crime. The Court is of opinion that a guard has authority to enter a dwelling if he does so to

make an arrest which the law permits. The entry was therefore authorised by law and was not a breach of the

accused's constitutional right.” (our emphasis)

The Court has drawn attention in the above passage to the qualification that a member of An Garda Siochana may enter in

order to make an arrest, given the evidence set out already, and submissions by Mr Gageby to the effect that the only

purpose of entry stated by the Gardaí in their evidence, and to Mr and Mrs Ryan on the morning of the search, was for the

purpose of executing the search warrant, and not the arrest of Desmond Ryan.

Mr Comyn has submitted that the arrest was not dependent upon or resulting from anything found in the search conducted

on foot of the search warrant, and that the Gardaí had ample grounds for a reasonable suspicion that Desmond Ryan had

committed an arrestable offence, and that in those circumstances they could enter pursuant to the power contained in s.6(2)

of the 1997 Act. He also points to the fact that four persons, including Desmond Ryan, were arrested on this particular day

arising out of the events of the 31st August 2000.

The Court is satisfied that the learned trial Judge fell into error when he expressed himself satisfied beyond a reasonable

doubt as to the intention on the part of the Gardaí to arrest Desmond Ryan based on the evidence of Detective Sergeant

Doyle and what he stated to Sergeant Cowan, the member in charge at Harcourt Terrace. In fact, as already stated, there

appears to be no evidence given in the case which could support the notion that when the Gardaí attended at the Ryan home

on the morning of the 26th September 2000, they had a dual purpose, namely to search on foot of the search warrant, and

also to effect the arrest. The evidence of Superintendent Coburn cannot be read so as to support the dual purpose theory.

That being so, the Court is satisfied that the onus of establishing the lawfulness of the entry upon the dwelling of Desmond

Ryan lies on the prosecution. In discharge of this onus, Mr Comyn has relied upon the power contained in s.6(2) of the

1997 Act, which has been recited above. In the view of the Court, the efficacy of that section is predicated upon an

intention on the part of the Gardaí to enter for the purpose of making an arrest. As Mr Gageby has pointed out, the section

commences with the words “For the purposes of arresting a person without a warrant…”

Entry was gained to the Ryan house on that morning on foot of the search warrant. No other basis of entry was proffered to

the Ryans on arrival. The finding that the warrant was bad has therefore removed the very foundation on which the entry

was made, and in the absence of the Gardaí informing the occupiers of the house that they had another purpose apart from

searching, namely the arresting of Desmond Ryan, it is the view of this Court that the power provided by s.6(2) of the 1997

Act cannot be relied upon, since it was never invoked by the Gardaí at the time. The fact that the power of entry exists does

not mean, in the view of this Court, that the purpose of entry, namely the arrest of somebody who resides in the house,

does not have to be explained before entry is enforced on foot of the power. The inviolability of a citizen’s dwelling is an

important constitutional right, and it cannot be trespassed upon without explanation in clear and unambiguous terms. It has

been recognised that where the restriction of a constitutional right is permitted by law, it must be restricted to the least extent

necessary for the achievement of the desired objective.

In the Court’s view a proportionate use of the power contained in s.6 mandates that before the somewhat draconian power

of forced entry is invoked there would have to have been either no response from a knock on the door or ring of the

doorbell, or in the case where such an inquiry is met by the door being opened by an occupant a request for entry would

have to be first uttered and subsequently rejected, before the Gardaí would be entitled to make a forcible entry. It follows

that in the particular circumstances of the present case that the least that would have been required to have been done is to

have informed the Ryans that they wished to gain entry for the purpose of search and arrest, if the lawfulness of their

presence in the house was not to be removed upon the subsequent finding that the search warrant was bad.

Consequences of Unlawful Arrest

The next issue concerns the consequences which may flow from a finding the Court’s finding that the arrest of Desmond

Ryan on that date was unlawful.

Mr Gageby submits that there are two immediate consequences, (i) that the detention of Desmond Ryan upon his arrival at

Harcourt Terrace Garda Station pursuant to s.4 of the 1984 Act was rendered unlawful and in breach of his right to his

liberty other than in accordance with law, since there was no lawful arrest of him; and (ii) that the alleged admissions made

by him during that period of unlawful detention, and any extension thereof, ought to have been excluded from as evidence in

his trial.

Unlawful Detention

When Detective Sergeant Doyle conveyed Desmond Ryan to Harcourt Terrace Garda Station, he applied to Sergeant,

Cowan, the member in charge, for his detention of pursuant to the provisions of s.4(2) of the Criminal Justice Act, 1984

which provides as follows:

“Where a member of the Garda Siochana arrests without warrant a person whom he, with reasonable cause

suspects of having committed an offence to which this section applies, that person may be taken to and

detained in a Garda Siochana Station for such period as is authorised by this section if the member of the

Garda Siochana in charge of the station to which he is taken on arrest has at the time of that person’s arrival

at the station reasonable grounds for believing that his detention is necessary for the proper investigation of

the offence.”

It is clear from the ordinary meaning of the words used in this section that the taking of the person to the Garda Station and

any later detention of that person under this section is predicated upon a lawful arrest of the person in the first place. No

authority has been opened, if such exists, to suggest otherwise. The Court is satisfied that in the present case, the finding

that the arrest was unlawful has the further result that Desmond Ryan was not in lawful detention following his being

detained at Harcourt Terrace Garda Station pursuant to s.4 of the Criminal Justice Act, 1984.

Exclusion of Alleged Admissions

The final question to be determined is whether the above findings have the further effect that the statements and memos of

interview taken while Desmond Ryan was in unlawful detention must be excluded as evidence in the trial.

In order to decide that issue, the Court has considered the judgments of the Supreme Court in The People (DPP) v. Kenny

[1990] 2 IR 110, and in particular the judgment delivered by Finlay CJ, with whom Walsh and Hederman JJ concurred. In

that case also, a search warrant on foot of which certain evidence had been gathered was found to be invalid on grounds

very similar to the present case, and the question at issue was whether the fruits of that search were admissible as evidence.

The matter came before the Supreme Court by way of a Certificate granted pursuant to s.29 of the Courts of Justice Act,

1924, the question certified was “whether the forcible entry of the appellant’s home by members of An Garda Siochana on

foot of an invalid search warrant constituted a deliberate and conscious violation of the applicant’s constitutional rights

such as to render any evidence obtained by the said members in the course of the ensuing search inadmissible at the

appellant’s trial.”

Griffin and Lynch JJ, in the minority were of the view that for such evidence to be excluded it had to be shown that the

members of An Garda Siochana acted deliberately and consciously in breach of the applicant’s constitutional rights. In that

particular case they were satisfied that where the Gardaí conducted the search in the belief that they were doing so on foot

of a valid search warrant, their actions could not be said to come within that category of action. This was so, they felt, since

it was the breach of the constitutional right, as opposed to the act complained of, which had to be deliberate and conscious

in order to rule out the evidence. The majority, as expressed in the judgment of Finlay CJ were of a different view, namely

that it was the act giving rise to the breach of the constitutional right which had to be deliberate and conscious, rather than

that the members had to have been conscious at the time that they were breaching such a right.

In his judgment, Finlay CJ concluded at page 134 as follows:

“The constitutional rights with which all these cases are concerned are personal rights, being either the right

to liberty: Walsh's case; Madden's case; Shaw's case, or the inviolability of the dwelling: O'Brien's case and

the instant case.

The duty of the Court pursuant to Article 40, s. 3, sub-s. 1 of the Constitution is as far as practicable to defend

and vindicate such rights.

As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the

invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the

principle which is likely to provide a stronger and more effective defence and vindication of the right

concerned.

To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a

constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from

acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his

conduct is or is not unconstitutional.

To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative

deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and

detection services of the State to consider in detail the personal rights of the citizens as set out in the

Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such

rights.

It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and

positive force is likely to protect constitutional rights in more instances than is a principle with negative

consequences only.

The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other

exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the

capacity of the courts to arrive at the truth and so most effectively to administer justice.

I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to

criminal cases.

The detection of crime and the conviction of guilty persons, no matter how important they may be in relation

to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional

obligation "as far as practicable to defend and vindicate the personal rights of the citizen."

After very careful consideration I conclude that I must differ from the view of the majority of this Court

expressed in the judgment of Griffin J in The People v. Shaw [1982] IR 1. I am satisfied that the correct

principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be

excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was

committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances

which justify the admission of the evidence in its (the court's) discretion.

In the instant case there cannot be any question but that the acts of the gardaí which obtained the warrant by

the submission to the peace commissioner of the sworn written information in the form in which I have recited

it, and which then forcibly entered the dwelling house were neither unintentional nor accidental, and counsel

for the respondent agrees that there are no extraordinary excusing circumstances in this case. Even though,

then, I would accept that neither of the two gardaí concerned had any knowledge that they were invading the

constitutional rights of the accused and would also accept that they were carrying out the process of obtaining

and executing a search warrant in a manner which has been customary over a long period with the gardaí , I

am satisfied that the evidence obtained as a result of the forcible entry into the house should not have been

admitted at the trial of the accused and that, accordingly, the conviction of the accused should not have

occurred.”

Thus, there is no room for argument in the present case, unlike the situation which arose in cases such as The People (DPP)

v. Buck [2002] 2 IR 268 where the accused’s detention was found to be unlawful because his right to consult with his

solicitor was denied, and in circumstances where he made inculpatory admissions while being questioned, that since there is

no causative link between the breach of the constitutional right (ie, in the present case being the inviolability of the dwelling)

and the evidence sought to be excluded, that such evidence should be admitted. Neither is there room for argument that in

the present case, as was also the case in the Kenny case, the Gardaí acted in good faith in entering the Ryan house on foot

of what they believed at the time was a valid search warrant, and that the evidence should therefore not be excluded. Such

arguments are of the kind which found favour only with the minority in Kenny.

It follows in the present case that the act complained of, namely the entry upon the Ryan dwelling on the 26th September

2000, comes within the concept of an intentional and deliberate action by members of An Garda Siochana, in the sense that

it was not an accidental or unconscious act on their part. The fact that they believed that they had lawful authority to so

enter is beside the point. There are no “extraordinary excusing circumstances” such as to allow the evidence to have been

admitted, and accordingly this Court is therefore satisfied that the evidence in question ought not to have been admitted at

the trial.

While there was some other evidence, including an earlier statement by Desmond Ryan himself, that he had played some

part in the fracas which took place, in the absence of the statements and memoranda which ought not to have been

admitted, the Court does not consider that the evidence would be such as to sustain a conviction for the statutory offence of

violent disorder. If a retrial were to be ordered, the statements taken after the unlawful arrest and memoranda would still be

inadmissible and the Court therefore will allow the appeal of Desmond Ryan in full and will not order a retrial.