Court of Criminal Appeal dismisses murder appeal where DNA and confession proved guilt despite uncertain cause of death.

Kearns J.

O’Donovan J.

McKechnie J.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No. 36/04 ]

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

AND

MICHAEL MURPHY

APPELLANT

JUDGMENT of Mr. Justice Kearns delivered on the 5th day of May, 2005

The appellant was convicted of murder in the Central Criminal Court on 13th February, 2004 and sentenced to life

imprisonment. The present application is one for leave to appeal against conviction.

The evidence in this case established that Ms. Bettina Poeschel, a young and healthy German tourist, disappeared on the

26th September, 2001 while travelling on foot between Drogheda and Newgrange where she intended visiting the

archaeological site. A massive police hunt was set in train and ultimately the body of Bettina Poeschel was found in a copse

by the Donore Road, Drogheda, in the County of Louth on 17th October, 2001. Professor Harbison, then the State

Pathologist, gave evidence that the body had been at the particular location for a considerable period, during which time,

unfortunately, various scavenging animals had damaged and removed parts of the body. Parts of the structure of the throat

were missing so that Professor Harbison could not say how Ms. Poeschel had died. He could not rule out strangulation, but

at the same time could not establish a specific cause of death. He gave evidence that the deceased had not survived very

long after eating some food before she died. She had not suffered from any chronic disease and he thought that death by

natural causes unlikely as the deceased was a young person in good health. He could not say that death occurred where the

body was found, but that it was possible that the body had been thrown from the roadway to the position where it was

subsequently located. He thought it unlikely that the deceased could have been force- marched to the position where the

body was found.

Forensic examination revealed traces of semen in high vaginal swabs taken from the body of the deceased. On 24th

October, 2001 the appellant was interviewed by the gardaí in Drogheda and provided a hair sample which, by 26th October,

2001, was known by the gardaí to match the DNA profile found in the swabs taken from the body of the deceased. In the

course of being interviewed on 24th October, 2001 the appellant was also shown a photograph of the Bettina Poeschel but

denied ever having seen her.

A great deal of other circumstantial evidence had been marshalled by the investigating gardaí, which included the accounts

of three Latvian workers for whom the appellant had responsibility in the Drogheda area on the date of disappearance of

Bettina Poeschel. They gave evidence that the appellant had left the work site near Drogheda that morning and had told

them he was going to visit his doctor with a back complaint. In fact, later evidence established that he did not visit his doctor

until the following day. There were other sightings of a motor car which matched the description of the appellant’s motor

car in the vicinity of the disappearance on the day in question, and further sightings of a vehicle which matched that

description were furnished by three young girls who had seen the vehicle in the vicinity of where the body of Bettina

Poeschel was subsequently found. There was further evidence that the appellant had taken bleach or cleaning fluid from his

worksite. A cleaning fluid of this nature appeared to have been applied to the deceased’s underwear which was found

around her knees where the body lay. The deceased’s trousers, socks, and red shoes were missing from the site, but were

later discovered in a skip near Donore Graveyard on the 2nd of November, 2001.

The appellant was arrested at 8.10 am on 27th October, 2001 under s. 4 of the Criminal Law Act, 1997 and was brought to

Drogheda Garda Station where he was detained pursuant to the provisions of s. 4 of the Criminal Justice Act, 1984. On that

day his initial period of six hours detention was extended by Superintendent Doggett of Drogheda Garda Station, the

appellant being ultimately charged within such second period of detention at about 7pm that evening with the murder of

Bettina Poeschel.

During the course of his detention, the appellant was interviewed by various members of the Garda Síochána. He also

received a visit from and consulted with his solicitor. His answers to various questions put to him are contained in memos of

various interviews which, in a form ultimately ruled upon by the trial judge, were permitted to go to the jury.

In the course of these interviews the appellant was advised that semen found in Ms. Bettina Poeschel’s body had been

examined and that his DNA was identified from the specimen found in her body and that there was both forensic and

circumstantial evidence linking him with Bettina Poeschel. He was asked to explain what had happened on the day of her

disappearance. The memo of the interview (exhibit 32) records that the appellant stated:-

“I cant talk about this, just charge me with it.”.

In the course of the afternoon, the appellant received a further visit from his solicitor and shortly afterwards requested to see

his girlfriend Samantha Johnson. While he sought a private visit with her, this request was not granted and the exchange

between the appellant and Samantha Johnson was recorded as follows:-

Samantha Johnson: “Did you do it?

Michael Murphy: What do you think

S.J. Tell me did you do it?

M.M. I’m sorry Samantha.

S.J. Did you do it, Michael, tell me the truth.

M.M. Don’t raise your voice”.

Samantha Johnson left the interview room at about 4.40 pm. The memo of the relevant interview notes (exhibit 33) records

that the appellant was visibly shaken after this visit. The memo of interview then records the following exchanges:-

Q. “Michael will you tell us the full truth about what happened?

A. I’m sorry.”

Prisoner breaks down sobbing with his head in his hands and shaking.

Q. “Tell us what happened?

A. Just tell that girl’s parents I’m sorry for taking her life and what I did to her,

I’m so, so sorry

Q. How did you kill her, Michael?

A.. I don’t want to say anything else about it. I’m just so sorry about it.”

During the trial, the appellant did not give evidence, nor was there any evidence adduced to suggest that these words were

not spoken.

Objection was, however, taken at trial to the admissibility of the questions asked and answers allegedly furnished during this

detention on a number of grounds.

Firstly it was contended that there was a sufficiency of evidence available to the gardaí at the time of arrest to charge him

with murder at that stage. The evidence available consisted of the DNA evidence and the fruits of the other enquiries and

investigations undertaken by the garda into the surrounding circumstances. It was thus contended that his detention, and the

extension thereof by Superintendent Doggett, was entirely unjustified and unlawful. The justification offered by

Superintendent Doggett for the detention and the extension thereof was based on the requirement to search the appellant’s

dwelling, to hold an identification parade in which the appellant would be involved, a search of his car and the taking of

finger prints and palm prints. The time was also used for the purpose of questioning the appellant.

It was vigorously contested on behalf of the appellant that these further searches or enquires did not require the detention of

the appellant and in fact yielded up nothing which added to the investigation or which was relied upon in evidence. A

witness who had been involved in the identification parade did not give evidence at the trial. The search of the appellant’s

car revealed nothing which advanced the investigation or which was relied upon in evidence. The witnesses who described

the appellant’s car simply identified that it was a car of that make and that colour. None of those witnesses, it was

submitted, had identified the car as the appellant’s car by reference to either its registration numbers and letters or by any

other distinguishing mark. Further, there was no requirement to detain the appellant while Dr. Maureen Smith of the Garda

Forensic Science Laboratory prepared a report in relation to the DNA evidence.

It was further contended that any interview of the appellant in the station following his arrest should have been electronically

recorded. In this regard the appellant placed reliance upon s. 27 of the Criminal Justice Act, 1984 and the Criminal Justice

Act, 1984 (Electronic Recording of Interviews Regulations, 1997, (S.I. No. 74 of 1997)) which came into force on 1st

March, 1997.

The evidence in the present case established that electronic recording equipment had been installed in Drogheda Garda

Station as of the 26th July, 2001, some three months prior to the date of the interview. While evidence had been given by

Inspector Jerry O’Brien that some technical difficulties relating to the way in which the chair and equipment were fitted

meant that the equipment was not fully operational until 21st November, 2001, there was also evidence that the two

interviewing gardaí from the National Bureau of Criminal Investigation were not trained in the use of the equipment in

question until February and March, 2002. On behalf of the appellant it was submitted that no adequate explanation had been

offered to explain either why the equipment was not working properly on the occasion in question, or why the relevant

officers were not properly trained in how to use the equipment at a time which was some three and half years after the

coming into force of the Regulations.

Finally, with regard to this portion of the case, it was further submitted that the trial judge erred in ruling admissible material

of a confessional nature which followed the meeting between the accused and his girlfriend Samantha Johnson, when the

evidence established that the accused was upset after that meeting. In that regard the appellant relied upon the decision of

the Special Criminal Court in The People (D.P.P.) v. Paul Ward (unreported, Special Criminal Court, 27th November,

1998).

After being charged, the appellant was brought before the local District Court and was remanded in custody to Cloverhill

Prison until the 2nd November, 2001. On that date, the accused was brought by two gardai from Ronanstown Garda Station

from Cloverhill to Drogheda District Court which was then sitting in a local bingo hall which, it appears, had suffered

damage by smoke or fire the previous night. As a result, the various adjournments and remands before the court were dealt

with early on the day in question. In the case of the appellant, he was again remanded for one week to Cloverhill Prison.

Inspector O’Brien attended at the District Court hearing and had a conversation there with the appellant’s solicitor, as a

result of which it was agreed that the appellant would sign a document authorising the release of his medical records. After

his case had been dealt with, the appellant was accordingly brought by the Ronanstown gardaí to the garda station in

Drogheda where he was placed in a cell. This occurred at 10.40 am and the appellant was not released back into the custody

of the Ronanstown gardaí for his return to Cloverhill until 3.05 pm.

It was submitted on behalf of the appellant that the Ronanstown gardaí should have retained custody of the appellant and it

was not open to them to release the appellant into the custody of the Drogheda gardai, they being the very officers who

were concerned with the investigation of the crime of which the appellant stood accused.

The two gardaí from Ronanstown did not give evidence at the trial. However, the warrant issued from the District Court in

Drogheda on 2nd November, was addressed to both the Governor of Cloverhill Prison and to the gardaí in Drogheda Garda

Station. It appears that after his remand the appellant was brought to Drogheda Garda Station and was initially placed in a

cell. Thereafter he was brought to an adjoining or nearby office at 12.25 pm. During the course of being present in this

room with Inspector O’Brien, the appellant is said by Inspector O’Brien to have requested something to eat. The appellant

had been brought to this room for the purpose of signing the written consent for the release of his medical records. This was

duly done when the appellant signed a 10 line handwritten authorisation prepared by Inspector O’Brien. A takeaway meal in

the form of chicken and chips was delivered to this room at 12.40 and the appellant was said to have requested that he be

allowed to remain in this room to eat the meal rather than be returned to his cell. Following the meal the appellant requested

a cigarette and asked to talk to his solicitor in relation to making arrangements for money to be made available to his mother.

Inspector O’Brien got a cigarette for the appellant and spoke to the appellant’s solicitor in relation to the other request.

It is contended on behalf of the appellant that these activities of the gardaí in Drogheda Garda Station , particularly those of

Inspector O’Brien, amounted to a form of emotional manipulation of the appellant in the hope that his guard would be

lowered and that he would be induced to say things which he would not otherwise have said. It is suggested that the

appellant at some point made “a spontaneous outburst” which was recorded by the Inspector who then drew Garda Thomas

Flynn into the room from the corridor outside and invited him to witness the accuracy of certain notes which Inspector

O’Brien had compiled in respect of this ‘outburst’. In the presence of Garda Flynn, Inspector O’Brien read over his note of

certain utterances allegedly made by the appellant and Garda Flynn gave evidence that the appellant nodded in agreement in

respect of the alleged admissions. These related in particular to the location of Bettina Poeschel’s trousers, socks and shoes.

Thereafter the appellant was returned to his cell at 1.40 pm, one hour and fifteen minutes after he left it. It was submitted

on behalf of the appellant that it was simply not credible that the requirement to draw up and sign a short written

authorisation could, or should have taken anything like this amount of time and that the appellant was clearly manipulated to

make the admissions the subject matter of Inspector O’Brien’s evidence.

Three other grounds of complaint were also advanced. Firstly, it was contended that evidence at trial in relation to a back

complaint suffered by the appellant was prejudicial rather than probative, that it was irrelevant and should not have been

allowed go to the jury. In the absence of clear directions from the trial judge it was argued that it was possible that the jury

could have believed that the appellant suffered the injury in the course of some forceful exchange between the accused and

the deceased.

It was further submitted that there was no evidence of the cause of death of the Bettina Poeschel, and that the DNA

evidence did no more that establish that sexual intercourse between the deceased and the appellant had occurred. It did not

exclude the possibility of accidental death thereafter, or the possibility that the deceased had died from natural causes, or

indeed been killed by some other person.

Finally, it was suggested that the learned trial judge failed to give the jury adequate assistance to describe DNA evidence,

both in its biological and statistical aspects, so as to enable the jury to exercise the appropriate function of a jury in relation

to that evidence. Expert witnesses should not, it was submitted, usurp the function of the jury and reliance was placed upon

the decision of the Scottish Court of Sessions in Davie v. The Magistrates of Edinburgh [1953] S.C. 34 at p. 40 per Lord

Cooper.

The Court will now deal with these various grounds of appeal in the following order.

(1) Electronic Recording of questioning

Section 27 of the Criminal Justice Act, 1984 provides:-

(1)The Minister for Justice may by regulations provide for the recording by electronic or other similar means

of the questioning of persons by members of the Garda Síochána at Garda Síochána stations or elsewhere in

connection with the investigation of offences.

(2) The regulations may be made so as to apply generally or to questioning at such places, to such extent, in

relation to such offences or in such circumstances, as may be prescribed therein.

(3) The regulations shall include provision for the preservation, for such time and in such manner as may be

prescribed therein, of every recording made in accordance with the regulations.

(4) Any failure to comply with a provision of the regulations shall not by itself render a person liable to civil

or criminal proceedings, and (without prejudice to the power of the court to exclude evidence at its discretion)

shall not by itself render inadmissible in evidence anything said during such questioning.

As already noted, the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations 1997 came into operation

on 1st day of March, 1997.

Article 4 of those Regulations provide:-

(1) Subject to paragraph (3), interviews with persons to whom these Regulations apply shall be electronically

recorded.

(2) The equipment used in a station shall be the equipment provided to and installed at the station for that

purpose and no other equipment shall be used.

(3) An interview or part of an interview is not required to be electronically recorded:-

(a) Where-

(i) The equipment is unavailable due to a functional fault, or

(ii) The equipment is already in use at the time the interview is to commence, and the member in charge

considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the

equipment becomes available, or

(b) Where otherwise the electronic recording of the interview is not practicable.

(4) Where an interview or part of an interview is not recorded for any of the reasons referred in paragraph

(3), the member in charge shall enter or cause to be entered in the custody record of the person to be

interviewed a note setting out the fact that the interview was not electronically recorded and the reason.

(5) Notwithstanding that an interview is electronically recorded in accordance with these Regulations,

regulation 12(11)(b)(i),(ii) and (iii) of the Custody Regulations shall apply as if the interview were not

electronically recorded.

As far back as May, 2002, this Court gave the clearest of indications, one might say warnings, that the failure to comply

with the spirit and terms of this legislation could reach the stage where a court might be asked to rule unacceptable the

tendering in evidence of a confession which has not been recorded.

The legislation outlined above was introduced at a time when convictions recorded in a number of high-profile criminal trials

in Britain were under attack and later set aside in circumstances where the evidence leading to conviction had largely

consisted of uncorroborated confessions later found to have been compelled, altered or falsified. Widespread concern about

such cases was expressed in many quarters and notably in Ireland. Public confidence in the proper administration of justice

and in the police is undoubtedly damaged when cases of this nature, often involving the most serious of crimes, occur. That

said, there could be no basis in this country for adopting a position of sanctimonious righteousness that problems with

confessional evidence occur only in other jurisdictions. One recalls the recent and tragic case of Dean Lyons, who confessed

in a police interview to a double murder which he could not have committed. Within the last few months also this court was

moved to set aside the only conviction recorded in relation to the Omagh bombing for reasons which related in part to

alterations found by the Special Criminal Court to have been made to interview notes ( D.P.P. v Murphy, unreported, Court

of Criminal Appeal, 21st January, 2005). In neither of these cases were the interviews electronically recorded.

These remarks should not be taken as lending support to any view that these instances are common or that gardai regularly

misbehave in relation to the taking of confessions – on the contrary, it may often be the case that it is the Garda Siochana

who themselves are most put at risk by the failure to provide simple and basic electronic equipment which would protect

them from the bringing of baseless allegations of ill-treatment or other misbehaviour in or about the taking of confessions.

No sector of our society has a greater interest in maintaining high levels of public confidence in the propriety of police

investigations than the Garda Síochana who, by the simple expedient of compliance with the Regulations, can thereby

provide a measure of protection for their members against dishonest attacks of this kind if and when they are made. Indeed

the regular ‘trial within a trial’ as to the admissibility of confessions which presently arises in virtually every criminal case

might well become a far less frequent event if electronic recording of interviews becomes the invariable or normal practice in

all garda stations where suspects are interviewed. Any recording made should provide a clear picture or account of

everything which transpires at interview. This should render futile many challenges or attacks which might otherwise be

made on garda testimony during a criminal trial, reduce the length and cost of trials and contribute to the enhancement of

public confidence in the system generally.

In this context it might then be asked if interviewing officers should still be required to make written notes of questions

asked and answers given as they proceed with interviews that are being recorded. Having been recorded they could be

transcribed to paper later. The present requirement adds greatly to the time required to complete an interview and a

correspondingly lengthy period of time to play over the tape to a judge and jury in the trial itself.

One would have thought, therefore, for the reasons outlined earlier, that the provision and installation of the recording

equipment specified by the Regulations would be afforded a very high priority.

This case is concerned with events which occurred in October, 2001 some four and half years after the Regulations were

introduced and some seventeen years after the enabling legislation was passed. In The People (D.P.P.) v. Connolly [2003] 2

I.R. 1, Hardiman J. stated (at pp. 17/18):-

“It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of

nearly two decades that legislators and judges alike have emphasised the importance of the audio visual

recording of interviews. This is routine in most First World common law countries. Its failure to become

routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision

for it was first made, has ceased to be a mere oddity and is closely approaching the status of an anomaly. It

also has the consequence that, in a very high percentage of criminal trials there is a hard fought issue (“the

trial within a trial”) as to the admissibility of statements which are often whole or a large part of the

prosecution case. Twelve years ago the Martin Committee reported that this situation had virtually ceased in

Ontario because of audio visual recording. The courts have been very patient, perhaps excessively patient,

with delays in this regard. The time cannot be remote when we will hear a submission that, absent

extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual

machinery or that the audio visual room was being painted), it is unacceptable to tender in evidence a

statement which has not been so recorded.”

That decision was given on the 7th May, 2002, and it is only appropriate to underline that it was handed down some eight

months after the events of 27th October, 2001 with which we are now concerned. As against that, a recent decision of the

Special Criminal Court (D.P.P. v Kelly, unreported, 26th November, 2004) suggests that past admonitions about the

desirability of recording interviews have had little effect .

In that case the defendant had been arrested on 1st July, 2003 under s.30 of the Offences Against the State Act, 1939 on

suspicion that he had committed the scheduled offence of unlawful possession of explosives. He was thereafter detained and

interviewed. The defence challenged the fairness of the interviews on grounds which included the ground that the accused

was subjected to those interviews in a garda station in which video recording of interview facilities was not available. The

evidence showed that he could have been brought to a station where such facilities were available. The court held that since

the investigating gardai were aware that during his detention the accused would be interviewed about allegations that he was

a member of the I.R.A. and that s.2 of the Offences Against the State (Amendment ) Act, 1998 would be invoked, it would

be preferable that the interview be video taped. The gardai should have recognised this fact The court stressed that while

there was no legal obligation on the gardai to bring the accused to a station in which video taping facilities were available, it

nonetheless had grave reservations about the garda failure to bring the accused to a station where such facilities were

available.

In delivering the judgment of the court, O’Donovan J. rejected the prosecution submission that a finding that the failure to

bring the accused to a garda station with video recording facilities was tantamount to legislating. The court accepted there is

no statutory duty to bring a prisoner to a station with video facilities, but said that basic fairness required that, where, as in

this case, it was possible to have done so it should have been done. The court held, for other reasons also, that the

interviews were tainted with unfairness and the evidence gleaned therefrom should be excluded.

In this case what we can only regard as unsatisfactory evidence was tendered by the prosecution to justify the non-use of

equipment which had been installed many months previously. The equipment is stated to have been checked and to have

been working correctly in November, 2001. At different points in the evidence, however, conflicting accounts were given on

the point whether or not the equipment was actually functioning on 27th October, 2001, being the date of the appellant’s

detention. We do not find the excuse or explanation that the chair in the interview room was facing the wrong way, and thus

preventing the equipment from being used, to be a particularly good one. Nor was any explanation offered as to why such

an obvious problem could not have been addressed between the time the equipment was installed and the events with which

we are concerned in October, 2001. Still less is there any adequate explanation for the failure to train the relevant officers in

the use of the equipment.

It is also difficult to believe that training would involve any great level of expertise. The Regulations themselves give a clear

idea of what is involved. A number of unused blank tapes are provided and, in the sight of the person to be interviewed,

they are unwrapped and loaded in the recording device which is set to record. The Regulations go on to deal with the

requirement that a caution be given to the person being interviewed and that certain information concerning the name and

rank of the member conducting the interview, together with the name and status of any other person present, be stated.

The Regulations go on to describe how the interview should be recorded, interrupted or discontinued depending on

particular circumstances. Article 12 provides that at the conclusion of the interview, the member conducting the interview

shall inquire of the person interviewed if there is anything further he or she wishes to say or to clarify, that he shall then read

back any notes taken in the interview and inquire of the person interviewed if he or she wishes to make any alterations or

additions, that he shall record the time, switch off the equipment and remove the tapes. One tape is then sealed with a

master tape label and given an identification number. The master tape label is then signed and the person interviewed is

asked to sign it also.

Article 13 provides that the member who conducts the interview shall as soon as practicable after the conclusion of the

interview give the sealed master tape to the member in charge who will make an appropriate entry into the custody record of

the time and date of interview.

We are setting out these provisions for the purpose of underlining that no great degree of complexity is involved in a process

which mirrors to a large degree the simple act of recording a programme on television for later viewing.

In the instant case, no entry was made in the custody record to account for the non-operation of the recording system on the

day in question. This was a further non-compliance with the statutory regime.

However, after careful consideration, the court has decided to apply s. 27(4) of the Criminal Justice Act, 1984 to hold that

the failure to comply with the Regulations in this case should not render inadmissible in evidence the admissions made by

the appellant on the 27th October, 2001. The Court has reached this conclusion partly because the events in this case took

place in October, 2001, some considerable time before this court handed down judgment in D.P.P. v. Connolly in May,

2002, but also, and more importantly, because no great contest arose in the trial as to what was actually said by the

appellant, and, apart from difficulties which are exclusively confined to the events of the 2nd of November, we are satisfied

there was no improper pressure, manipulation or threat of any sort adopted or applied by the interviewing gardai during the

period of his detention on 27th October, 2001.

However, going forward and for the reasons already given, there should be a marked reluctance to excuse failures to comply

with the requirements of the Criminal Justice, Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than

those circumstances specified in the Regulations themselves. We feel therefore that in respect of station interviews from this

point onwards, the court should only exercise its discretion under s.27 (4) for very good reason.

(2) Admissions Made on 27th October, 2001 and the Detention of the Appellant on that date

It is the view of the Court that, at the time of the arrest of the appellant, the evidence fell far short of what would be

necessary to sustain a charge of murder against him. Insofar as the DNA evidence is concerned, it established, at best, that

the appellant had sexual intercourse with the deceased shortly before or at the time of her death or afterwards. It also gave

lie to the assertion by the appellant, after having been shown a photograph of her on the 24th October, 2001, that he never

saw the missing German girl . Insofar as the circumstantial evidence is concerned, therefore, the court is of the view that it

established no more than that the appellant had an opportunity to kill the deceased. Accordingly, the court is satisfied that, at

the time that the appellant was arrested, the arresting officer was quite entitled to do so on the basis of his suspicion that the

appellant may have murdered Bettina Poeschel and, not only was there no obligation by law imposed on him to charge the

appellant with the offence of murder at that time, it would have been a derogation of his duty had he done so because it

would have inhibited the further investigation of the offence of which the appellant was suspected.

In this regard the court refers to an unreported judgment of this court, D.P.P.v O’Toole and Hickey (20th July, 1990) in the

course of which Hederman J. stated (at p. 39):-

“It is not only the right, but also the duty of gardai investigating the crime of murder, to fully investigate all

the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence of

the person or persons accused of that crime”

It goes without saying, and was expressly acknowledged in that case, that the lawful questioning of a suspect forms part of

that proper investigation.

Insofar as the extension by Superintendent Doggett of the period of the appellant’s detention under the provisions of s. 4 of

the Criminal Justice Act, 1984, is concerned, we accept that some of the matters dealt with and attended to that day did not

require the detention of the appellant, for example, the requirement to have the appellant’s car identified by certain

witnesses. It is equally clear to the court that the appellant’s continuing detention was necessary and appropriate both for the

purposes of further questioning and for the purpose of other investigations, such as the identification parade and the

requirement to photograph and fingerprint the appellant. Accordingly, the court is satisfied that the extension was lawful and

that the fruits of interviews during that extended period were admissible in evidence.

(3) Admissions made following meeting with Samantha Johnson

We have no hesitation in rejecting the ground of appeal which relates to admissions made subsequent to the meeting

between the appellant and his girlfriend Samantha Johnson. We are satisfied the accused requested to see his girlfriend and

the fact that the appellant had made such a request is recorded on the custody record and signed by the appellant at 4.30 pm

on the date in question. That being so the circumstances of the case are utterly different from those so properly condemned

by Barr J. in delivering judgment in D.P.P. v. Paul Ward (unreported, Special Criminal Court, 27th November, 1998):-

The court is satisfied beyond all reasonable doubt that the visit from Mrs. Ward was a deliberate ploy devised

and orchestrated by the police in a final effort to prevail on the accused to disclose what he had done with the

gun…. The court is satisfied that the visit was not arranged for any humanitarian purpose but was a cynical

ploy which it was hoped might break down the accused and cause him to make what was perceived to be a

crucial admission regarding what had happened to the weapon.

As to the visit from Ms. Vanessa Meehan to the accused; the court accepts her evidence that she was

successfully subjected to grievous psychological pressure by Detective Sergeant Hanley and perhaps other

officers also to assist the police in breaking down the accused who up till then had maintained consistent

silence over many interrogation sessions. Both meetings amounted to a conscious and deliberate disregard of

the accused's basic constitutional right to fair procedures and treatment while in custody. They constituted

deliberate gross violations of the fundamental obligation which the interrogators and their superiors had of

conducting their dealings with the accused in accordance with principles of basic fairness and justice.”

We are satisfied in the present case that no such motive can be ascribed to the police officers in respect of the meeting

requested by the appellant. Furthermore, it appears that the meeting in question was relatively brief and ended immediately

when the appellant so requested. We see no reason therefore to exclude the admissions made by the appellant thereafter.

(4) Admissions made on 2nd November, 2001.

The court is not persuaded that there was anything inherently wrong or unlawful in detaining the appellant at Drogheda

Garda Station for some hours following his remand at Drogheda District Court on 2nd November, 2001, or in releasing him

into that custody. In the view of the court, it was quite appropriate to do so pending the issue of a warrant from the District

Court whereby the appellant would be remanded back to Cloverhill for a further week.

We are also satisfied that ,during his period of detention in the garda station, it was quite in order for Inspector O’Brien to

seek the appellant’s signature on the document authorising release of his medical records.

However, the court is not satisfied that it was necessary or appropriate that the Inspector, who was significantly involved in

the murder inquiry, should have been alone with the appellant in the office for a period of one hour and fifteen minutes.

Clearly, it would not have taken much time, minutes at most, to complete and execute the release form. Accordingly, and

while the court does not suggest that Inspector O’Brien offered any improper inducements to the appellant or, as was

suggested, that he sought to manipulate the emotions of the appellant, there is, in the view of the court, substance to the

suggestion that the inspector hoped that, if he remained in the appellant’s company long enough in the relaxed circumstances

then obtaining, the appellant might say something of an incriminating nature, which, in fact, he did. The court believes that

the appellant was, on the day and in the particular circumstances, in a position of considerable vulnerability and that the

Inspector should have acted differently, that his actions, possibly at an unconscious level, were tactically unfair and took

advantage of that unusual level of vulnerability. The court feels that the learned trial judge, for those reasons, should have

excluded the admissions made by the appellant which led to the recovery of the trousers, socks and red shoes in the skip

near Donore graveyard.

That said, we do not believe the exclusion of that particular evidence, in the form in which it was given, would have affected

the jury’s verdict having regard to all the other evidence in the case.

(5) The Back complaint evidence

Equally, the court is satisfied that the evidence in relation to conflicting accounts given by the appellant in respect of the

provenance and treatment of his back complaint was admissible. Indeed, no objection was taken to its admissibility and it

was clearly relevant as to opportunity. The trial judge in charging the jury accurately recorded the various portions of

evidence which were led or given in this respect and said absolutely nothing which could give grounds for any apprehension

that the injury in question might have been sustained as a result of some exchange between the deceased and the appellant.

This ground of appeal is rejected.

(6) Cause of Death

We are also satisfied that the ground of complaint advanced to the effect that no specific cause of death was ascertained

should be rejected. We are satisfied that this ground of appeal is also misconceived.

The question of causation is essentially a factual issue for the jury and there was in the present case abundant evidence from

which a virtually irresistible inference could be drawn – if they accepted the other evidence - that the appellant murdered his

victim. Bettina Poeschel was in perfectly good health on the day of her disappearance. Her body was subsequently found at

a location and in a state of undress which, in conjunction with the evidence of sexual intercourse could have left the jury in

little doubt but that she had been murdered either during or immediately after sexual intercourse had taken place. Her

trousers, socks and shoes were later found in a skip in Donore Cemetery. Efforts had been made to scrub cleansing fluid

into the underwear which she had been wearing. She was found in a state of undress in a location to which she could not

have gone voluntarily and indeed there was the clearest of evidence that she could not even have been force-marched into

the position of concealment where her body was later found.

All of these pieces of evidence constituted strong circumstantial evidence pointing to the probability that she had been

murdered, but the evidence which undoubtedly was capable of carrying the requirement to prove the case beyond

reasonable doubt lay in the admission of the appellant “Just tell that girl’s parents I’m sorry for taking her life and what I

did to her, I’m so, so sorry”.

The Court has no doubt that there was sufficient evidence for the jury to conclude that the appellant had murdered the

deceased, even if, because of the interval of time and the damage caused as a result to the body of the deceased, the precise

mechanism whereby she died remains uncertain.

(7) DNA evidence

We are also satisfied that the trial judge adequately explained the DNA evidence to the jury. Largely as a result of objections

and interventions by counsel on behalf of the appellant, the witness Dr. Maureen Smith, whose credentials are no longer

challenged on this appeal, went into a lengthy and perhaps over- technical explanation of DNA technology in the course of

her evidence. However, she carefully explained the statistics and differentiated between points of comparison between the

population at large and other groups of people such as siblings. There was no failure therefore, to differentiate between

different sample groups, such as has been the subject of criticism in other cases involving DNA evidence.

We are further satisfied that on being requested so to do, the trial judge recalled the jury and gave a simplified and accurate

version of the essential requirements of proof in this regard.

The court will dismiss the appeal.