Court of Criminal Appeal dismisses appeal where Gardaí made reasonable bona fide attempts to contact solicitor before questioning.

COURT OF CRIMINAL APPEAL

RECORD NO. 20/08

Finnegan J.

Hanna J.

Charleton J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

RAYMOND GORMLEY

APPLICANT

Judgment of the Court delivered on the 27th day of July 2009 by Finnegan J.

The applicant was charged with the following offences:-

1. Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001.

2. Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

On the 7th November 2007 he was found not guilty on count 1 and on count 2 not guilty of rape but guilty of attempted section 4 rape.

On the 24th April 2005 the complainant was alone in her house. She knew the applicant having met him socially on a number of occasions. They became

quite friendly. In the early hours of that morning the complainant awoke to find the applicant beside her in her bed. He had gained access by climbing a

drain pipe and entering through an upper floor window. The complainant’s evidence was that the offences with which the applicant was charged then

occurred. Shortly thereafter the applicant left the premises through the front door.

Later that morning, a Sunday, the complainant contacted the Garda Síochana. She identified the applicant. Immediately the Gardaí ascertained the

applicant’s address which was in an apartment complex. On arriving at the apartment complex the Gardaí met with the owner of the same who admitted

them to the apartment block. They went to the applicant’s apartment. The door to the same was open. They called out and entered and climbed an internal

stairway. They found the applicant reading a newspaper and he invited them to come in. The applicant was cautioned and a number of questions were put

to him. He identified the clothing he had been wearing that morning. In answer to questions he admitted climbing the drain pipe at the back of the

complainant’s house and entering through an upstairs window. The applicant was then arrested and taken to the Garda Station arriving at 2 p.m. He was

processed. Two interviews took place:-

1. Interview commencing 3.10 p.m. and terminating 4.46 p.m.

2. Interview commencing 6.47 p.m. and terminating 8.33 p.m.

In the course of processing at the Garda Station the applicant was informed of his entitlement to consult a solicitor. At 2.15 p.m. the applicant requested as

his solicitor either Mr Cathal Quinn or Mr Kieran Dillon. No mobile phone number for either of these solicitors was available and they were not in their

respective offices. A Garda car was dispatched to find Mr Dillon. It first called to his parents home where there was no response. Gardaí then called to Mr

Dillon’s home where they spoke to his wife. She agreed to contact Mr Dillon. These events occurred between 2.15 p.m. and 2.45 p.m. At 3.05 Mr Dillon

telephoned the station and said that he would call to the station shortly after 4 p.m. At 4.48 p.m. the applicant’s solicitor arrived at the station and he met

with the applicant at 5 p.m. The solicitor remained with the applicant until 5.45 p.m.

Grounds of Appeal

The Notice of Appeal contained a single ground as follows:-

“The learned trial judge erred in fact and in law in admitting into evidence the statements allegedly made by the accused to the prosecuting Guards.”

In submissions the admissibility of statements was challenged on two grounds:-

1. The entry into the applicant’s dwelling was unlawful and therefore his arrest was unlawful and interviews consequent upon the entry and arrest should

have been excluded, and

2. The interviews were obtained in breach of the applicant’s constitutional right of access to his solicitor and ought to be excluded.

It is proposed to deal with each of these grounds in turn.

1. Entry into the Apartment

The applicant did not give evidence. Sergeant McGonigle gave evidence. At about 1.30 p.m. he went to the Quiet Moment Apartments with Sergeant

Gillespie and Garda Flatley. The bell/intercom for Flat No. 5 at the common entrance to the complex was not working. As they were standing at the

entrance to the apartment complex the owner of the complex arrived and admitted them. They went to the entrance door to the applicant’s apartment. The

door was open. He pushed it open and walked in and shouted “Hallo” but received no reply. There was a workman inside. He climbed the internal stairway,

put his head around the door and saw the applicant sitting reading a newspaper. He asked:

“Raymond, do you mind if I come in and speak to you for a few minutes?”

The applicant replied:-

“Come on in, Séamus.”

He proceeded to ask the applicant a number of questions and put the complainant’s allegations to him. The applicant was co-operative and answered the

questions which he was asked. Sergeant McGonigle arrested the applicant under section 4(3) of the Criminal Law Act 1997.

Sergeant McGonigle was cross-examined. His statement was put to him. In the statement he said:-

“I went upstairs along with Sergeant Gillespie and Garda Flatley to the door of apartment no. 5 which was open. I knocked on the door and as there was no

reply we went up the internal stair. At the top and I observed Raymond Gormley sitting down reading a newspaper.”

He accepted that in his statement he did not mention calling out. However his clear recollection was that he had in fact called out.

Sergeant Gillespie gave evidence. When the Gardaí got to the apartment door it was ajar. When they entered Sergeant McGonigle called out. The applicant

was sitting in the living room area of the apartment and said:-

“Come on in, Séamus.”

In cross-examination he said that his recollection was that Sergeant McGonigle knocked at the door and called out at the same time.

Garda Flaherty gave evidence that when the Gardaí got to the door of the apartment the door was open. They entered and went up the internal stairs. The

applicant invited them in. In cross-examination Garda Flatley said that Sergeant McGonigle did call out when they got to the door of the apartment.

On behalf of the applicant it is submitted that the entry into the apartment was a civil trespass. Reliance is placed on dicta in Director of Public

Prosecutions v Gaffney [1987] 1 I.R. 173. It was there held by the Supreme Court (Henchy J. dissenting in part) that in the light of the particular

circumstances and the trial judge’s finding that there was no invitation to enter, the defendant’s arrest was in violation of Article 40, s.5 of the Constitution,

because in view of the fact that the Gardaí had twice been refused entry there could be no presumption that there was an invitation to enter either as a

matter of fact or law merely because there was no express refusal. In the course of his judgment with which Finlay C.J., Hederman J. and McCarthy J.

concurred Walsh J. said:-

“The essential facts of the case were not in dispute and they were that when the Gardaí first called to the house one occupant of the

house namely, the brother of the defendant, refused an entry, and requested them to leave. When the Gardaí called again, ten

minutes later, they were again told to leave, there was then apparently some alleged incident as a result of which the said occupant of

the house was arrested for allegedly assaulting one of the Gardaí and placed in a patrol car. After that the Garda Inspector in question

again approached the house knocked on the open front door asking if anybody was inside and a male voice answered from the interior

saying ‘yes, in here’. The real question then is whether in the circumstances of the case the male voice which answered saying ‘yes, in

here’ was extending permission to the Gardaí to enter the premises which had been refused to them twice already. In my view, in the

circumstances of this case, the reply to the question as to whether or not there was anybody in the house could not be construed as

an invitation to enter. The learned District Judge found as a fact that there was no invitation to the Gardaí to enter the premises which

was the dwelling of the defendant also.

The learned High Court judge was of opinion that ‘there was no invitation in the ordinary sense of the word to enter the premises’, but said ‘there was

certainly no refusal, no request to leave, no rejection of the opportunity of the Inspector to make a common law arrest’. In view of the fact that the Gardaí

had twice been expressly refused permission to enter the house and that there had been no express invitation in the ordinary sense to enter the premises,

an invitation cannot be presumed either as a matter of fact or of law simply because there was no express refusal. Notwithstanding the decision of

O’Hanlon J. in Director of Public Prosecutions .v. Closkey (unreported, High Court, 6th February 1984) and the English decision of Morris v Beardmore

[1981] A.C. 446, it is my view that the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or

permission to enter particularly in the circumstances of this case. The latter decision not only adds no support to the view that police officers in such a

situation as the present one had any lawful authority to be in the house but makes it quite clear that without permission to be present in the house the

policeman was a trespasser.”

Later in the course of his judgment Walsh J. said:-

“So far as the lawfulness of their presence in the house was concerned the only question was whether there was permission, express or implied, to be

there.”

The issue upon which Henchy J. dissented is not relevant to his view on the general issue in the case. At page 182 he said:-

“The test is whether the person claiming the householders’ rights could succeed in an action in tort for trespass. As I understand it,

the law is that it is a good defence to such an action that the defendant was at the relevant time on the premises by leave or licence,

express, or implied of the plaintiff or of the person entitled to give such leave or licence. Such defence is an example of an application

of the maxim volenti non fit iniuria. In each case where the defence of leave or licence is raised, it is a question of fact whether in the

particular circumstances the defendant was on the premises by express or implied leave or licence.”

It is clear from the foregoing that the test in each case is whether the Gardaí are on the premises as trespassers at the relevant time. In the present case

the Gardaí entered the premises without invitation or licence and at that time were trespassers. However upon the applicant issuing the invitation “come on

in, Séamus” the presence of the Gardaí on the premises became authorised: they were now invitees. That the character upon which a person enters and

remains upon premises may alter in this manner is well established: Burton v Scott [1847] 9 L.T.O.S. 313, Moxon v Savage [1860] 2 F & F 182. From

the issue of the invitation the presence of the Gardaí on the premises was not a trespass nor was it unlawful. Statements were taken thereafter and at the

time the statements were taken, the relevant time, the Gardaí were not trespassers. It follows from this that neither the statements taken nor the arrest

were unlawful on the basis contended for by the applicant.

The applicant is refused leave to appeal on this basis.

Denial of right of access to a solicitor

The applicant requested a solicitor at 2.15 p.m. Following attempts to contact the solicitor, the solicitor telephoned the Garda Station at 3.05 p.m. and

stated that he would attend shortly after 4 p.m. The first interview of the applicant commenced at 3.10 p.m. and terminated at 4.46 p.m. The applicant’s

solicitor arrived at the Garda Station at 4.48 p.m. During the first interview the applicant made a number of inculpatory admissions. It is accepted that the

Gardaí made efforts to contact the applicant’s solicitor: however, it is submitted that insufficient time was allowed before commencing the interview to allow

the solicitor to attend at the Garda Station. The applicant relies on The People (At the Suit of the Director of Public Prosecutions) v Paul Healy [1990]

2 I.R. 73 where it is held that the right to reasonable access to a solicitor is derived from the Constitution. In that case the right of access to a solicitor by a

person in detention was recognised. It was held that the right of a defendant to reasonable access to his solicitor meant a right to be immediately informed

of the solicitor’s arrival and to be given immediate access to him.

The respondent relies upon the decision of this court in The People (Director of Public Prosecutions) v Buck [2002] 2 I.R. 268. It was there held that

where a person in custody requests a solicitor and makes an incriminating statement prior to the arrival of the solicitor then that statement will be

admissible in evidence unless there has been a deliberate and conscious violation of the applicant’s constitutional right of access to a solicitor where a

failure to observe reasonable standards of fairness will require the exclusion of the statement. Keane J. went on to say:-

“Assuming that, in the present case, the trial judge was entitled to conclude that the arrest and detention of the defendant was lawful and did not constitute

a mala fide attempt to ensure that he was without legal advice while he was being interrogated and that the Gardaí made bona fide attempts to secure the

presence of a solicitor when the defendant requested them to do so it would follow that there was in this case no deliberate and conscious breach of his

constitutional right of reasonable access to a solicitor and, on that assumption, his detention remained lawful. It would also seem to me that, where a

person being detained under a statutory provision asked for a solicitor to be present and the Gardaí made bona fides attempts to comply with that request,

the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a

matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public

policy.”

In the present case this court is satisfied that it was open to the learned trial judge to conclude that the attempts by the Gardaí to make contact with the

solicitor nominated by the applicant are bona fide and reasonable. In the course of his ruling the learned trial judge said:-

“Between 2.15 and 3.10 they made efforts to find Mr Dillon. I am satisfied that those efforts were reasonable and the best they could be expected to do in

the situation. They were conscious of the fact that they had only six hours to conduct an investigation in the second most important crime in the criminal

calendar and they had a duty to do and the constitutional rights which should attach to the investigation have to be considered and balanced against the

constitutional rights of the accused.

The information available to them was that Mr Dillon would arrive after 4 p.m. It was certainly clear to them that he was not going to

arrive before 4 p.m. and it was also clear to them that he could arrive a very considerable amount of time after 4 p.m. In fact, his

arrival was at 4.48 half way through the detention and, of course, thereafter time had been taken from the detention period for his

access and also for family access to the accused which was forfeited.”

The learned trial judge on that basis exercised his discretion to admit this statement. The court is satisfied that the learned trial judge was entitled on the

evidence before him to reach the conclusion which he reached and to admit the statements. Where the detained person requests access to a solicitor the

Gardaí are under a duty to make bona fide attempts to give effect to the request and a failure to do so will constitute a breach of the suspect’s

constitutional right of access and render his detention unlawful. However, so long as reasonable efforts are being made to contact the solicitor there is no

prohibition on the Gardaí proceeding to question him: The People (Director of Public Prosecutions) v Buck. Difficulties can, of course, arise where arrest

is effected over a weekend when access to a solicitor may be difficult to arrange. In the present case there can be no suggestion having regard to the time

at which the offence was committed and the arrest made, that there was any deliberate attempt to make it difficult for the applicant to have access to a

solicitor. Indeed in this case, having regard to the circumstance that it was a Sunday afternoon, the Gardaí used diligence and resourcefulness in locating

the solicitor nominated by the applicant.

The court refuses the applicant leave to appeal on this ground.

Conclusion

For the reasons hereinbefore set out the applicant is refused leave to appeal.