Court of Criminal Appeal dismisses appeal where entire interview was excluded due to tainted process.

COURT OF CRIMINAL APPEAL

Kearns J.

Dunne J.

MacMenamin J.

[CCA 100/06]

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

MICHAEL O’NEILL

APPLICANT

JUDGMENT of Mr. Justice Kearns delivered on the 16th day of March, 2007.

The applicant was convicted of rape on the 8th April, 2006 following a trial in the Central Criminal Court and was thereafter sentenced

to eight years imprisonment by Carney J. on 22nd May, 2006. Leave to appeal was refused by the learned trial judge and the present

application for leave is based on a single ground, namely, that the learned trial judge erred in law in excluding all the contents of a

memorandum of interview of the accused in circumstances where objection had only been taken to the admissibility of part of the

memorandum of interview.

The evidence at trial was that the complainant, who in March, 2004 was aged 18 years, lived with her family in a housing estate in

Kildare. She and the accused knew each other well, having grown up and resided in close proximity to each other. The sister of the

applicant was a close friend of the complainant. On Saturday 6th March, 2004 the complainant and the accused were socialising in

various pubs around Kildare town with their friends. They met during the evening in one of the bars and kissing took place. It seems

this was the first time that any degree of intimacy had occurred between the couple. In the early hours of the 7th March, 2004, the

complainant and the applicant walked home together towards their respective homes in Kildare town. Their route took them past Saint

Bridget’s Park. The couple entered the park where an act of sexual intercourse ensued.

On 8th March, 2004, the complainant made a complaint to the gardaí that she had been raped by the applicant.

On the same day, Garda Karen Pound and Garda Pat Dooner of Kildare Garda Station called to the applicant’s home in Kildare to

interview the applicant regarding the matters alleged by the complainant. A memorandum of the interview was recorded by Garda

Pound in her notebook. In the course of this interview, the accused was asked a series of questions about the events of the previous

evening. In the course of the interview, the applicant admitted having had sexual intercourse on a consensual basis with the

complainant for a short period until the complainant asked him to desist. In the latter part of the interview, however, the applicant

admitted that he raped the complainant. The evidence of the garda officers was that the applicant was then told he would have to

come to the garda station to make a full cautioned statement. The applicant elected to go with the gardaí to the station where he

made a signed cautioned statement admitting rape. Carney J ruled that as the statement made in the garda station had not been

video-taped, he could not be satisfied that it was admissible having regard to decisions of this Court in Director of Public Prosecutions

v. Michael Murphy [2005] 4 IR 504 and Director of Public Prosecutions (Ivers) v Murphy [1999] 1 I.R. 98.

Having succeeded in excluding the cautioned statement made in the garda station, counsel on behalf of the applicant then objected

in the absence of the jury to the admissibility of portion of the interview which had taken place in the kitchen of the family home of

the accused and which had preceded the visit to the garda station. It was argued on behalf of the applicant that this memorandum of

interview had been obtained in an improper manner and in breach of his rights in that, inter alia, he had not been cautioned and it had

not been read over to him before he signed it. No objection was raised by the defence to the admissibility of the earlier part of the

memorandum of interview which was largely exculpatory.

In the voir dire hearing about the interview, the applicant gave evidence that at a certain stage of the interview the attitude or the

demeanour of the two gardaí changed. He testified that Garda Dooner said he was dissatisfied with his responses and threatened that

the applicant would be taken into custody unless he furnished answers which were to his (Garda Dooner’s) satisfaction. The applicant

stated that he would not have admitted to the rape except for the pressure he was put under by the gardaí. He also maintained that

Garda Dooner had told him that CCTV footage existed which showed the applicant with the complainant on the night in question.

Later enquiries by the applicant’s solicitor, Connell Boyce, indicated that, following an enquiry made to the local garda superintendent,

Mr Boyce had received a letter in reply from Supt Murphy confirming that no footage was in fact in garda possession. Mr Boyce gave

evidence to this effect.

On behalf of the prosecution, Ms. Walley S.C. objected to the severance of the memorandum of interview arguing that the interview

was either conducted in breach of the applicant’s rights or it was not. If taken in breach of the applicant’s rights, then all of the

interview should be excluded. She characterised the application by counsel for the applicant as an exercise in cherry- picking in that

he wished to exclude the incriminatory parts of the interview but get the benefit of the exculpatory portions. Counsel for the

applicant had seen fit to put the exculpatory portions to the complainant in cross-examination before the jury. His decision thereafter

to make objection to the interview before evidence about its contents was led by the prosecution - rather than at the point where it

was alleged the applicant was put under pressure - was a tactical matter for the defence over which the prosecution had no control.

It was certainly not open to the defence to argue thereafter that it was at a disadvantage because the effect of the ruling might be

to create a requirement to call the applicant as a witness to substantiate matters put to the complainant in cross-examination.

The trial judge gave his ruling on the matter at the end of the day’s hearing on 4th April, 2006 where he decided as follows:-

“In the light of the evidence of Mr. Boyce and also the documentary material furnished by Superintendent John Murphy, I

am unable to be satisfied to the standard of beyond reasonable doubt that this interview was wholly voluntary, and

accordingly, I am required by law to exclude it.”

When the case resumed the following day, counsel for the applicant reiterated that he had not objected to the earlier part of the

memo which contained his client’s exculpatory account of the events of the evening. He stated that he had conducted his cross-

examination of the complainant by reference to the exculpatory portions of the statement and contended that he would be placed at

“a severe disadvantage” if the first portion of the interview was now to be excluded.

However, having heard counsel from both sides, Carney J. stated:-

“I said that the evidence of Mr. Boyce, combined with what we have from the Superintendent put me in a position where

I could not be satisfied to the standard of beyond reasonable doubt that the interview was voluntary in the legal sense

and, accordingly, I excluded the interview and I accept your proposition that if the interview is excluded, the interview is

excluded.”

In the course of argument before this Court, Mr Grehan, senior counsel for the applicant candidly accepted that he had an option as

to the timing of his objection. He accepted he could have allowed the evidence in relation to the interview to proceed to the point

where, on his client’s instructions, the sequence of questions and answers had moved from being voluntary to involuntary. He was

concerned, however, that Garda Dooner in his statement in the book of evidence had made a number of prejudicial references to the

applicant and to certain knowledge which he had concerning the applicant’s family. For that reason he had decided not to take the

risk that such evidence might be admitted by the trial judge. In reply, Ms. Walley argued that the supposed prejudicial material could

not, in any event, have been led in evidence by the prosecution, so that if this was the basis for a tactical decision to challenge the

interview from the outset, it was not a good reason and it was not now open to the defence to “have it both ways”. She maintained

the trial judge was correct in law in excluding the entirety of the memorandum. Where a memorandum of interview is “mixed” in the

sense that it contains both inculpatory and exculpatory parts and is deemed inadmissible in law because of the illegal or inappropriate

matter in which it has been obtained, then the correct approach in law is to exclude it in its entirety. In the instant case, the learned

trial judge was not satisfied that it was wholly voluntary, and was therefore bound to exclude it.

Decision

This appeal raises an interesting point of law in respect of which it appears there is a dearth of decided authority in this jurisdiction.

The point in essence is whether or not a judge in a criminal trial may “sever” a statement (or in this case a memorandum of

interview), so as to exclude inculpatory portions but to preserve and admit into evidence those portions or lines in an interview or

statement which may be regarded as exculpatory of an accused person.

Counsel for the prosecution in the course of argument relied to some extent on the decision in The People (Director of Public

Prosecutions) v. John Clarke [1994] 3 IR 289 in which this Court had to consider whether a distinction could be drawn between

incriminatory and exculpatory parts of a statement made by an accused.

In the course of delivering judgment in the case, O’Flaherty J. stated at p. 303:-

“The law on this topic was reviewed extensively in the decision of the Court of Criminal Appeal in The People (Attorney

General) v. Crosbie (1961) 1 Frewen 231 (31 July 1961). The Court comprised Maguire C.J., McLoughlin and Teevan JJ.

The judgment in the case was given by Teevan J.

The true position in law, as established by that case, and which we take this opportunity of reiterating is that once a

statement is put in evidence as in this case by the prosecution, it then and thereby becomes evidence in the real sense

of the word, not only against the person who made it but for him as to facts contained in it favourable to his defence, or

case. A jury is not bound to accept such favourable facts as true, even if unrefuted by contrary evidence but they

should be told to receive, weigh and consider them as evidence.”

The Court noted the position in England as outlined in the judgment of the Court of Appeal, Criminal Division in R v. Duncan [1981] 73

CR. App. R. 359 where the judgment at p. 365 says as follows:-

“Where a ‘mixed’ statement [meaning thereby one that contains incriminatory as well as exculpatory matter] is under

consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and,

therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the

incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to

say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less

than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge, may, and should, point

out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the

same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the

exculpatory remarks upon the election of the accused not to give evidence.”

Mr. Grehan, with considerable ingenuity, argues that the decision in Director of Public Prosecutions v. Clarke and the principles

enunciated in R v. Duncan are of little or no relevance to the point he is making. He did not contend that the distinction of importance

lay between inculpatory and exculpatory portions of an interview, rather that the true distinction lies between portions of an

interview which are voluntary and portions of an interview which are involuntary. The jury should be entitled to receive such evidence

as is voluntarily obtained, particularly in circumstances where it had already been relied upon by counsel for the defence to cross-

examine the complainant and where its exclusion effectively compels the defence to call the accused as a witness.

There can be no doubt but that a court must exclude a statement if it is not voluntary. As Griffin J noted in The People v Shaw

[1982] I.R. 1 at p. 48:-

“It is for the trial judge to decide, when he has heard all the evidence on the question, whether a statement made by an

accused person is admissible. If he is satisfied that it was not voluntary, his decision can only be to exclude it; he has no

discretion to admit such a statement…”

The present application seeks to have admitted portion of an interview which has been ruled out in its entirety. Counsel for the

applicant has offered a reason for not waiting until the unobjectionable portion (which is the first portion) was led in evidence.

However the Court is not satisfied that the timing of the challenge to the supposedly involuntary portion of the interview could not

have been postponed until that stage of the evidence had been reached. The reason for making the challenge at the outset was a

tactical one, based on counsel’s apprehension that there was a risk of prejudicial material from the garda member who conducted the

interview being admitted into evidence. The Court has no reason to think this apprehension was well founded.

It seems to the Court that the approach urged by counsel for the applicant could lead to very undesirable results. For example, it

could be that an interviewee might drift from a state of voluntariness to one of involuntariness for any particular reason at any

particular moment during the course of interview. A trial judge would be in an impossible situation if he is of the view that the

interview as a whole is suspect and should on that account be excluded would then nonetheless be obliged to dissect the interview

on a line by line basis, giving rulings on the admissibility of each line and the voluntariness or otherwise thereof.

There may, of course, be certain cases, perhaps exceptional in nature, where a voluntary process of question and answer may alter

in mid-stream, but the reasons offered by the learned trial judge for ruling out the interview in the instant case do not contemplate or

acknowledge the occurrence of any such exceptional event. He took the view, as he was entitled to do on the evidence, that the

entire interview process was tainted because he found that Garda Dooner had said to the applicant that he had been caught on CCTV

footage leaving a particular licensed premises with the complainant. In the view of the trial judge that assertion, which had been

proved in evidence to be untrue, undermined the reliability of everything that followed, whatever its effect.

The Court is satisfied that, once he had reached that conclusion, the learned trial judge was correct to exclude the entirety of the

interview. In this regard, it must be borne in mind that an interviewee will in many instances endeavour to place an exculpatory

account in the balance with an inculpatory account in a self-serving way so that to sever the one from the other within the same

process so as to admit only exculpatory portions could lead to a very distorted picture being given to a jury.

That is not to say that there will not in certain cases be statements or interviews which may require “editing”, either by agreement

between the prosecution and the defence, or by ruling of the trial judge, to exclude material from an otherwise admissible statement

on the basis that it may be irrelevant or prejudicial in the sense that it is unrelated to the offence charged. Where, however, the

entire process is found to have been tainted, the Court is of the view that the safer course is to exclude the entirety.

The Court will therefore refuse the application for leave.