Court of Appeal dismisses appeal against conviction and reduces sentence by suspending two years.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 145

Birmingham J.

Mahon J.

Edwards J.

100/14

The People at the Suit of the Director of Public Prosecutions

v

Alan Freeman

Appellant

Judgment of the Court delivered on the 26th day of June 2015, by Mr. Justice Birmingham

1. On the 5th February, 2013, the appellant, with a co-accused Daniel O’Regan, went on trial at Kilkenny Circuit Criminal Court

charged with the following offences:-

1. Aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2. Burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and

3. Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2. On the 28th February, 2013, which was day fifteen of the trial, the appellant entered a plea of guilty to a count of theft which was

added to the indictment. Notwithstanding the plea of guilty that was entered, now before the Court is an appeal against conviction

and against sentence.

3. So far as the appeal against conviction is concerned, two grounds are identified, these being:-

1. The evidence of arrest, detention and interviews was obtained unconstitutionally and is inadmissible, and the trial

judge’s decision in that regard is wrong in both law and fact and is deficient in reasoning.

2. The trial was rendered unsatisfactory and the process of the court was abused owing to the conduct of the most

senior garda officer involved in the case engaging in meetings and telephone communications with the appellant during the

trial, knowing that the appellant was on trial on indictment and was legally represented.

4. The Director of Public Prosecutions has taken the position that ground number one was moot because of the plea of guilty and has

objected to this ground being argued. There is a further point in that the decision of the Supreme Court in DPP v. J.C. [2015] IESC 31

would have had a major relevance to the resolution of this ground. In any event, it was, at least tacitly, accepted by the appellant

that if he failed on ground two that his plea of guilty would represent an insuperable obstacle to raising issues about the validity of

the arrest and detention.

5. In those circumstances, the arguments on this appeal have been confined to ground two.

6. To offer some context to this ground, it is necessary to explain that on the 9th January, 2009, a gang of four men broke into the

home of a licensed firearms dealer who lived in a rural area outside Carrick-on-Suir, Co. Tipperary. Present in the house at the time of

the aggravated burglary/robbery was the firearms dealer, his wife, his daughter and an elderly family friend. The former occupants

were held for some four hours in their home and were threatened by the balaclava-wearing raiders who were armed with a sawn off

shotgun, a knife and a large stick. The occupants of the house were tied up and locked in a firearm safe. The gang took 42 firearms,

€800 in cash and the family car.

7. It was never suggested that the appellant was one of the group of four raiders, or indeed that his co-accused Mr. Daniel O’Regan

was present at the crime scene. Rather, the case against them was that Mr. O’Regan had furnished information about the

circumstances of the firearms dealer to the appellant and he had furnished it to the criminal gang which had proceeded to carry out

the aggravated burglary.

8. On the 8th October, 2009, Mr. Freeman was arrested. The arrest was carried out by gardaí who had come to his home in

possession of a s. 29 Offence Against the State Act Warrant which had been issued by Detective Superintendent Hayes, who was

leading the investigation. This led to a Damache point about the validity of the arrest being argued at trial. However, the prosecution

contended that the gardaí who came to the house had a dual purpose: to search but also independently to arrest Mr. Freeman.

Ultimately, this argument found favour with the trial judge.

9. The trial opened on the 5th February, 2013. The appellant was represented by a solicitor and by senior and junior counsel. Of

significance is the fact that when the trial took place that the appellant was subject to an eight year suspended sentence that had

been imposed by His Honour Judge Desmond Hogan at the Dublin Circuit Criminal Court on the 11th February, 2008, after a plea of

guilty to an armed robbery at the Bank of Ireland at Rathbone, Co. Laois, on the 13th February, 2004. On day fifteen of the trial the

appellant changed his plea to one of guilty of a theft count, which was added to the indictment. The matter was put back for

sentence with the appellant remaining on bail. There was no prosecution objection to the appellant being permitted to remain on bail.

10. There was some delay in bringing on the sentence herein. It appears that this was attributable to the need to arrange a hearing

in Dublin before Judge Hogan to consider the question of whether the sentence that he had imposed but suspended should be

activated. On the 14th February, 2014, six years of the eight year suspended sentence was activated with the final two years

remaining suspended.

11. In June 2013, the appellant indicated to Judge Hogan that it was his intention to withdraw the guilty plea that he had entered in

Kilkenny on the 28th February, 2013. His application to permit him withdraw the plea of guilty was heard on the 29th July, 2013 by

the trial judge, His Honour Judge Griffin, before whom the plea of guilty had been entered. Judge Griffin refused the application to

vacate the plea of guilty which had been entered on the theft charge. Subsequently the appellant brought judicial review proceedings

arising from the decision of the trial judge not to allow him to change his plea. Those judicial review proceedings were unsuccessful.

See in that regard Freeman v. DPP, Judge Gerard Griffin and Judge Desmond Hogan (Unreported, High Court, 21st February, 2014),

[2014] IEHC 68, a decision of Kearns P.

12. The appellant argues that the conduct of a senior garda officer involved in the case, indeed the most senior officer involved, in

having a number of meetings and telephone communications with the appellant while the matter was at trial, rendered the trial

defective or unsatisfactory. The application to change the plea was supported by evidence on affidavit, including evidence from the

appellant’s telephone records, which showed a level of telephone communication between the appellant and the Detective

Superintendent heading up the investigation during the period when the appellant was at trial in Kilkenny Circuit Criminal Court. The

appellant contends that inducements were offered by the Detective Superintendent which procured the entry of a plea and that the

plea that he entered was not the exercise of free will. Reference is made to those cases where the Court is called on to consider the

voluntariness of admissions. By analogy to the admissions issue, it is said that the fact of a significant level of contact having been

established, that the onus is on the prosecution to prove beyond reasonable doubt that inducements were not offered to the

appellant. Moreover, the appellant says that the Detective Superintendent being engaged in communications with a person on trial is

inherently unsatisfactory and gives rise to a suspicion of improper influence and improper behaviour which is for the prosecution to

dispel beyond reasonable doubt.

13. The respondent, Director of Public Prosecutions, says that regard must be had to the context in which the plea was entered.

These included the fact that:

1. His co-accused had entered a plea of guilty to theft some nine days earlier and was admitted to bail pending sentence.

2. The strength of the prosecution case had been increased by the outcome of three voir dires which had taken place

and which had been resolved in favour of the prosecution.

3. As a result of the ruling on the voir dires the jury was going to hear evidence to which the appellant had objected

including statements of admission made by him.

4. The appellant was given ample time to consult with his legal advisers and to reflect on his situation prior to his re-

arraignment on the theft count, a fact that was acknowledged by his legal advisers when the re-arraignment took place.

5. If a plea of guilty to theft had not been entered, the likelihood is that the appellant would have received a significantly

greater sentence, if convicted on the counts that were originally on the indictment.

14. It is, perhaps, useful to look in more detail at what the appellant and Detective Superintendent Hayes have to say about the

contact that there was between them and how the issue was dealt with by the trial judge. Mr. Freeman refers to telephone records

and draws attention to 21 calls that he says were received by him from a mobile number used by Detective Superintendent Hayes

between the 10th February, 2013 and the 28th February, 2013. Two of these were text messages and the remainder were phone

calls. Some were very short, in one case as short as five seconds, but others were substantial. The longest being one of nine

minutes. As it happens, both the longest at nine minutes and the shortest at five seconds were on the 27th February, 2013, the day

before the change of plea.

15. Mr. Freeman alleges that during the course of these conversations, Detective Superintendent Hayes made arrangements for

meetings with him. He says that the Detective Superintendent commented on the progress of the trial, implied that it was not going

well, criticised the efforts of the defence legal team and urged him to plead guilty. More particularly, Mr. Freeman says that, during

the first week of trial, the Detective Superintendent met with him at a children’s adventure and activity centre, the Empire of Fun, in

Tipperary town. The appellant contends that Detective Superintendent Hayes asked him if he could persuade his co-accused, Darren

O’Regan, to plead guilty saying that if this happened that it would “lighten the load” for Mr. Freeman, as then the gardaí would have

several convictions and it would “be better” for Mr. Freeman. The appellant says that he told the Detective Superintendent that he

would speak to his co-accused. On the following day, according to Mr. Freeman, he asked his legal advisers, without telling them

anything about the contact with Detective Superintendent Hayes, whether it would make a difference if Mr. O’Regan changed his

plea. In response to this query he says that he was told that if that happened that there was a possibility that Mr. O’Regan might be

called to give evidence against him.

16. Mr. Freeman says that the following evening he was contacted by Detective Superintendent Hayes and asked how the contact

with Mr. O’Regan had gone, to which he responded “not good”. Three or four days later the Detective Superintendent telephoned him

and asked to meet, suggesting that the meeting could take place near a particular tyre centre in Tipperary town. Detective

Superintendent Hayes inquired of Mr. Freeman how the trial was going, and what were the thoughts of the legal team in relation to

the legal arguments that had been advanced in relation to the validity of an arrest following on the issuing of a warrant under s. 29 of

the Offences Against the State Act. According to Mr. Freeman, he asked the Superintendent was there anything that could be done

in the trial to “sort it out”. It is alleged that the response to this inquiry was that Mr. Freeman was asked to leave it with the

Superintendent for a few days and that the Superintendent would “speak to his people”. Mr. Freeman says that he followed up on

matters by calling the Detective Superintendent a few days later, who told him that more time was required.

17. Mr. Freeman says that after a day or two, Detective Superintendent Hayes telephoned him and told him to plead guilty referring in

colourful terms to the effect junior counsel for the defence was having on the judge. On this occasion according to Mr. Freeman, the

Detective Superintendent particularly said that if a guilty plea was entered that he would “get his people in Dublin to look after the

suspended sentence”. Mr. Freeman was also informed that the Detective Superintendent would get Inspector Leahy to speak up for

him in the sentence hearing and say that the appellant had only a minor role in the incident and had not been in trouble for five or six

years. The most that Mr. Freeman would get was three years with one suspended. Shortly after this conversation Mr. Freeman says

that he met Detective Superintendent Hayes at the roundabout near the tyre centre and that the Superintendent asked him what the

appellant thought about what was being offered. According to Mr. Freeman the Detective Superintendent said that he would “stick to

my promise as I did before”. Mr. Freeman says that this was a reference to the earlier sentence which had been suspended and that

because of the way the Detective Superintendent had managed to deal with the earlier sentence, that he believed that the

Superintendent had the influence necessary to deliver what he was promising. According to Mr. Freeman there was further contact

that evening at, or near, a Gaelscoil when Mr. Freeman got into a Volkswagen Passat driven by Detective Superintendent Hayes.

Later that night Detective Superintendent Hayes telephoned him three times to arrange a meeting. Mr. Freeman says he was not

anxious to have a meeting as his solicitor had advised against this but that he was too worried at this stage, so he did meet with the

Superintendent because he had previously been instrumental in delivering a suspended sentence for a serious offence. Mr. Freeman

says that the Superintendent said “would you not plead and I’ll get someone to speak up for you”. Again according to Mr. Freeman,

the Detective Superintendent said that he would only get three years and that he would probably be sent to Shelton Abbey or an

open prison for a few months. According to Mr. Freeman, on the following morning when he met his legal advisers he told them that

he needed to change his plea to guilty. Mr. Freeman said that he told his advisers that Detective Superintendent Hayes had said that

if a guilty plea was entered, that Mr. Freeman would not go into custody straight away and that there would be no objection to bail

until June 2013. Mr. Freeman said that he asked his lawyers to approach the prosecution and ascertain if there would be an objection

to bail and that they did so and were informed that there would be no objection to bail until June 2013. Furthermore, Mr. Freeman

says that the Detective Superintendent told him that a matter that was pending at Kilmallock District Court would be “sorted out”.

Mr. Freeman, in the affidavit sworn by him seeking to vacate his guilty plea, refers to the fact that during the course of the trial, that

at the request of leading counsel for the prosecution, that the trial judge had made an order that there was to be no contact

between the appellant and members of An Garda Siochána and vice versa for the duration of the trial. The contact that there was

amounted to a contempt of court. On this point Judge Griffin was satisfied that Detective Superintendent Hayes was unaware of the

order which had been sought by the prosecution and accordingly that there was no question of contempt.

18. Detective Superintendent Hayes for his part says that he did not offer any inducements or promises to Mr. Freeman and that any

interaction that he had with him related to other matters. He says that these matters were of a secret and sensitive nature. Prior to,

during and after the trial had concluded, Mr. Freeman informed him of matters not relating to the investigation on what was described

as “an incremental basis”. The matters were significant and caused him to submit a report to garda management on the 27th

February, 2013.

19. Detective Superintendent Hayes says that during the last week of January, 2013 and the first week of February, 2013 he was

contacted by Alan Freeman who sought a meeting. He was contacted by Mr. Freeman using a particular mobile phone and the

Detective Superintendent comments that he is aware that Mr. Freeman changes his mobile number on a regular basis. A meeting was

arranged and at that meeting secretive and sensitive matters were discussed and Mr. Freeman spoke about imminent threats to life.

In the course of his affidavit resisting the application to vacate the plea, the Detective Superintendent stated that he wished to

claim privilege in respect of these matters, as to disclose the details would create a significant risk to the lives of a number of

individuals including the appellant. He says that he was also claiming privilege in respect of the craft and methodologies used by An

Garda Siochána to target, apprehend, and prosecute persons involved in organised and subversive crime at the highest level.

Detective Superintendent Hayes says that Mr. Freeman sought his advice in relation to the forthcoming trial, he says that Mr.

Freeman was aware of the Damache judgment and also aware that if convicted he would have to be returned to Judge Hogan so that

the question of the eight year suspended sentence could be addressed. Detective Superintendent Hayes says that he told Mr.

Freeman that he was not in a position to advise on legal matters and that Mr. Freeman should consult with his legal advisers.

Detective Superintendent Hayes also refers to his phone records, essentially to establish that contacts were initiated by Mr. Freeman.

The Superintendent accepts that he made contact with Mr. Freeman through seven calls which he highlights and says that he was

trying to arrange a meeting between Mr. Freeman and a trained member of another garda unit which is the appropriate garda

procedure.

20. The Detective Superintendent says that he met Mr. Freeman on two occasions during the trial, not four as Mr. Freeman claims.

He denies requesting Mr. Freeman to get the co-accused to plead guilty. In that regard he says that in his view, both Mr. Freeman

and Mr. O’Regan were as culpable as the raiders who terrorised the householder and his family and that there were no circumstances

in which he was going to “lighten the load” for any of those involved.

21. Detective Superintendent Hayes refers to further conversations with Mr. Freeman during April 2013 and to a meeting on the 27th

April, 2013, which he said necessitated him travelling outside the region and that this journey related to other matters of which Mr.

Freeman had informed him. The second meeting during the trial took place on Sunday the 24th February, 2013. At the request of Mr.

Freeman, Detective Superintendent Hayes drove to a location which Mr. Freeman had identified and there matters, other than that

relating to trial, but which related to the location, were discussed. Detective Superintendent Hayes adds that on occasions when he

attended the trial, and this was only on rare occasions because while the trial was ongoing he was committed to significant trials of

DPP v Mooney and Rockett in the Special Criminal Court and DPP v Damache at Waterford Circuit Court, he and other members of An

Garda Siochána, including Detective Inspector William Leahy and Detective Sergeant Barry Boland, were approached by Mr. Freeman

who was criticising his counsel.

22. Detective Superintendent Hayes says that he had no involvement with Mr. Freeman’s previous conviction for robbery for which he

had received a suspended sentence. Now retired Detective Sergeant Sean Grennon gave evidence in that case before Judge Desmond

Hogan. The evidence was that Mr. Freeman had been of material assistance, had no previous convictions and had repaid the money

taken. Just as he had no involvement in the earlier robbery and suspended sentence, likewise he is very clear that in the present case

he had no involvement in, nor was he consulted in relation to the fact that Mr. Freeman was permitted to remain on bail having

entered a plea of guilty. He is firm and clear in saying that he did not offer any inducement to Mr. Freeman in respect of giving

evidence or remaining on bail.

23. The trial judge in the course of his ruling referred to the fact that there had been contact between the appellant and the

Detective Superintendent outside the dates when the matter was at trial and indeed that there was contact in April, 2013. He said

that he was satisfied from the affidavit of Superintendent Hayes and from privileged documents that were handed in, that the

discussions between the Superintendent and the accused were in relation to matters unconnected with the trial. The reference to

privileged documents arises in circumstances where the Detective Superintendent had produced a memorandum for his own

authorities in relation to the matters that had emerged during the contact between him and the appellant. The trial judge read the

documents in the context of considering the claim of privilege and ruled that the documents could be read by solicitor and counsel for

the accused, but that they could not show the documents to anybody else, including the accused himself. This Court has not had

sight of the documents. In those circumstances, anything it can say in relation to them must inevitably be somewhat constrained.

From certain exchanges between the judge and counsel one can deduce that the documents contained very sensitive material. The

decision in effect, to erect a barrier between the legal representatives of the accused and their client, is not a course of action that

this Court would favour. (See Burke v. Central Television [1994] 2 IR 61 and Ward v. The Special Criminal Court [1998] 2 ILRM 493).

However, there was no real objection at trial to the course of action proposed and the fact that the procedure which was followed

was one that this Court would not have adopted is not determinative of the issue. In the course of his ruling, the trial judge

commented that he had to take account of the fact that the accused, in a sense, knew the ropes. That was an observation that was

well justified. He commented that the accused had, by the stage at which the plea of guilty was entered, been involved in three voir

dires. He drew attention to the fact that in the course of one of those voir dires dealing with the question of the voluntariness of

admissions in a situation where the accused was contending that inducements had been offered to him by a Detective Garda, that

the judge when ruling on the matter had commented as follows:-

“The accused did not report the alleged inducement to a solicitor, despite having a consultation with him almost

immediately after the alleged inducement was made, nor did the accused mention to his solicitor any meeting in another

room off camera. I find it difficult to accept that the accused would not inform his solicitor of such an event, if for no

other reason to record the fact that the inducement was made.”

24. Those remarks were made by the trial judge in the course of a ruling delivered by him on the 22nd February, 2013, so they must

have been very fresh in the mind of the accused. In those circumstances the observations made by the trial judge are telling indeed.

Had it been the case that while a voir dire was taking place in relation to the issue of whether there had been inducements leading to

the admissions, further inducements were being offered even then to secure the entry of a plea of guilty, it is very hard to believe

that that would not have surfaced.

25. There is no doubt that the contact between the Detective Superintendent and the then accused was unusual. Indeed, it would

have been better if the contact had not occurred. In a situation where this Court has not had access to all of the material which was

before the trial court and on which the trial judge relied, it is not appropriate to put matters in stronger terms. The trial judge referred

to comments made by Kearns J., as he then was, in the Supreme Court in the case of People DPP v. Redmond [2006] 3 I.R. 217,

where he had commented:-

“A judge would, in my view, require to be satisfied that very exceptional circumstances are demonstrated and a very high

threshold met before he actively intervenes to second guess the accused, and his legal and/or medical advisers who opt

to plead or conduct a defence in a particular way. A judge should not intervene to set aside a guilty plea unless there are

quite exceptional circumstances arising in the particular case.”

26. Applying that test to the case, he found that there were not exceptional circumstances present and refused the application. In a

situation where he had found as a fact that the contact between the accused and the Detective Superintendent was in relation to

matters unconnected with the trial, he was entitled to so conclude. Mr. Freeman entered his plea with his eyes open. He was aware

that his legal team were not advising a plea because they, in part at least, saw the arguments in relation to Damache as having

substance. Any confidence there might once have been in that point must be significantly undermined by reason of the decision of

the Supreme Court in the J.C. case. Insofar as there was contact, both by telephone and face to face between the Detective

Superintendent and the appellant it is clear that Mr. Freeman was willing to engage in that contact.

27. He entered his plea at a time when he had assistance from senior and junior counsel and there can be no reason whatsoever to

believe that his will was overborne. The decision whether to vacate the plea on foot of the application or not was a matter for the

trial judge. Having conducted three voir dires, he was uniquely well positioned to assess where the merits lay. The decision that he

arrived at was one that was very clearly open to him and accordingly, this ground of appeal fails. That disposes of the appeal against

conviction and the court will now turn to the question of sentence.

_____________________________________________________________

28. This morning the court delivered a written judgment which dismissed Mr. Freeman’s appeal against conviction and in the course of

that judgment the background is set out in some detail and it is not necessary to repeat it at this stage.

29. So far as the sentence aspect is concerned, the position is that at an advanced stage of the trial, Mr. Freeman entered a plea to

an offence of theft which was added to the indictment. As emerged from the earlier judgment there was then an attempt to withdraw

the appeal and indeed there was an attempt to appeal the recorded conviction notwithstanding the plea that was entered. In those

circumstances the amount of credit which would normally be given for a plea has to be much reduced. Notwithstanding that there

may be some very limited remaining credit by reason of the fact that court time was saved.

30. The significant feature here is and this is again set out in the earlier judgment, that when Mr. Freeman went on trial and when he

entered his plea, he did so at a time when he was subject to a suspended sentence of eight years imprisonment. That suspended

sentence had been imposed in respect of a bank robbery and very unusually it had been suspended in full. There was an application

to activate that sentence and six of the eight years were activated and that is not at issue today and it is also not in dispute today

that the sentence that was to be imposed on this matter would have to be consecutive.

31. The judge in this case imposed a sentence of seven years imprisonment and that was consecutive to the suspended sentence,

the suspended activated sentence being one of six years, because six rather than eight years were activated. The effect of that is

that the global sentence that would be served by Mr. Freeman arising from this incident was set by the judge at in effect thirteen

years.

32. Having regard to the gravity of the incident at the core of this criminal involvement, the court does not see any error in a figure

of thirteen years. However, the court does feel that it is necessary in a situation where the two sentences were going to be

consecutive to each other and where the global sentence was going to be a very long one to have regard to the principles of totality

and proportionality.

33. In the circumstances and in the belief that when Mr. Freeman serves the significant sentence that he must serve, that it would

be better that there would be an incentive for him not to further reoffend, in order to provide that incentive, the court will suspend

the final two years of the thirteen years. Therefore effectively reducing the seven years to five to be served consecutive to the six

years. That is conditional on Mr. Freeman entering into a bond to keep the peace and be of good behaviour for a period of two years

following his release from custody in the amount of €100.