Court of Criminal Appeal quashes arson and manslaughter convictions due to unfair trial and inadmissible evidence.

THE COURT OF CRIMINAL APPEAL

C.C.A. No. 178/10

McKECHNIE J.

O’KEEFFE J.

WHITE J.

BETWEEN

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

RESPONDENT

AND

JASON MURPHY

APPELLANT

JUDGMENT of the Court of Criminal Appeal delivered by McKechnie J. on the 18th day of January, 2013.

The Charge and Conviction:

1. On the 5th March, 2010, having pleaded not guilty on each, the Appellant was convicted on the following three counts, all relating

to offences which occurred on the 27th April, 2007: (i) the manslaughter of Mrs. Anne-Marie O’Neill by an 11-1 majority (count 1), (ii)

arson of a Toyota Yaris motor car by unanimous verdict (count 2), and (iii) arson of a dwelling house at 202 Elm Park, Clonmel, Co.

Tipperary, also by unanimous verdict (count 3). He was subsequently sentenced to 15 years, 12 years and 7 years imprisonment

respectively, all to run concurrently and to commence from the 5th March, 2010, the date upon which the appellant was first taken

into custody following conviction.

General Background:

2. Mr. Murphy’s first trial on these charges lasted only two days before the jury was discharged as one of its members was related by

marriage to the appellant, though this relationship was unknown to either party when the jury was sworn in. The instant trial was

then immediately commenced and lasted nine days before the learned trial judge, sitting with a different jury in Clonmel Circuit Criminal

Court. It resulted in the conviction and sentence above described.

3. The prosecution’s case against the appellant was that on the 27th April, 2007 he, together with others, assembled in a field in

Clonmel, Co. Tipperary, from which a number of them later moved to a friend’s house, in a neighbouring estate. It was further alleged

that, together with another person, he left that house at about 4 or 5 a.m., and set fire to a Toyota Yaris motor car at about 5 or

5:30 a.m.. This vehicle belonged to Mrs. Anne-Marie O’Neill and was parked about 2.5 feet from the house, in first gear with the

handbrake engaged and centrally locked, in the family driveway at 202 Elm Park, Clonmel, Co. Tipperary; this driveway had a 1-in-14

slope inwards from the public roadway towards the house. Due to the intensity of the fire some of the mechanisms melted, causing it

to roll forward, so that the front of the blazing car ended up against the front of the dwelling house, in which Mrs. O’Neil and her

husband, Mr. Pat O’Neil were upstairs, sleeping. The fire spread from the car to the house. Having smelt the smoke, Mr. O’Neill

managed to escape by jumping out of the upstairs window, but his wife was unable to do likewise and tragically died in the fire.

4. Later that morning, the appellant went to another friend’s house – that where Mr. John Paul Coady lived – and cleaned himself up,

before returning to the house where he had been earlier, with his own jacket reportedly smelling of smoke and petrol. It is further

alleged that he had exchanged jackets with Mr. Jonathan Dennehy. In the words of Counsel for the D.P.P., the “nub” of the case was

that in a conversation with two of his friends – the said Mr. Dennehy and Ms. Jannette Coady – the appellant admitted that he had lit

the fire, although in a separate exchange with Mr. John Paul Coady he had denied so doing. He further repeated this denial when later

interviewed by the Gardaí.

5. In the absence of effectively any other and certainly of any more substantive evidence, the conviction rested exclusively on the

statements of Ms. Janette Coady, Mr. Jonathan Dennehy, and to a much lesser extent Mr. John Paul Coady. The first two were

arrested for withholding information under s. 30 of the Offences Against the State Act, 1939, as amended, were detained and

interrogated for two days before release, after which, allegedly, they freely and voluntarily, returned to the relevant Garda stations

and made the statements at issue each of which implicates the accused. The third person was similarly arrested, detained,

interrogated and released and in the circumstances more fully particularised at para. 43 infra, he also went to a garda station and

allegedly, freely and voluntarily, made the statement in question. The principle argument of the appeal centres on these statements.

6. At trial, each of these witnesses gave testimony that the statements were not given voluntarily but rather were obtained as the

result of threats or inducements (“threats”) from the interrogating Gardaí. A voir dire was held to determine the admissibility of the

statements under s. 16 of the Criminal Justice Act, 2006, as amended (“the 2006 Act” or “the Act”), with the judge ultimately ruling

that each statement was both voluntary and reliable within the meaning of that provision. Thus, such were admitted in evidence

before the jury.

Appeal:

7. Having been refused leave to appeal against both conviction and sentence, Mr. Murphy subsequently issued a Notice of Application

for Leave to Appeal to the Court of Criminal Appeal on the 28th June, 2010: he did so on nine separate grounds, only six of which

were supported by written submissions. These may be grouped into three core categories, all suggesting that in a variety of ways the

trial judge erred both in law and in fact in:

(i) admitting in evidence pursuant to s. 16 of the 2006 Act the statements of Janette Coady, Jonathan Dennehy and John

Paul Coady;

(ii) refusing to recharge the jury (a) in relation to the law on manslaughter pertaining to a requirement of objective

foreseeability of the likelihood of risk or injury to another person, (b) regarding the degree to which the foreseeability

element of recklessness relating to arson is subjective, and the related threshold which the prosecution has to overcome

to secure a conviction for same, and (c) in order to give an appropriate and adequate corroboration warning; and

(iii) refusing to discharge the jury, firstly when it was discovered that one of the jurors attended the same class as a

principle State witness, Detective Sergeant Tierney, and secondly, after ten of the jurors deliberated for about ten

minutes in the absence of two jurors.

8. In addition submissions were also made on that aspect of the appeal dealing with severity of sentence. However, as is common,

consideration of such ground has been deferred pending this Court’s decision on conviction.

First Ground: Admission of Statements Pursuant to s. 16, Criminal Justice Act, 2006:

9. Under this heading the appellant raised several matters but in essence his principle points can be stated as follows: (i) that the

trial judge erred in finding that the statements above referred to were both “voluntary” and “reliable” within the meaning of s. 16(2)

(b)(ii) and (iii) of the 2006 Act. Evidence relied upon by the prosecution in this regard was insufficient to support such a finding in

light of the weight of the evidence to the contrary; (ii) that the trial judge could not have reached an informed decision on the

required threshold without viewing the videotapes of the witnesses’ interviews and that his decision in declining to look at such tapes

was influenced by a misunderstanding of where the burden of proof rested, in establishing both of the above requirements; (iii) that

the statements cannot be regarded in isolation from the entire two-day interrogation period which each individual was subjected to;

(iv) that the statements should have been considered individually rather than “en bloc” as regards their admissibility as each

statement constituted “other evidence” under s. 16(4)(b) of the Act; and finally (v) that the trial judge failed to inform the jury that

if they considered the admitted statements unreliable as per s. 16 they should acquit the appellant. The case of D.P.P. v. O’Brien

[2010] I.E.C.C.A. 103 (“O’Brien”) was cited at a general level being the principle if not the only reported case, to date, on this

statutory provision.

10. In addition to these matters it will be convenient also to deal with the “corroboration” issue, as the request for a judicial direction

in this regard was inextricably linked to the type, nature and quality of the evidence resulting from the successful invocation of the

provisions of s. 16. This in turn cannot be looked at in isolation and must be viewed having regard to the manner in which the trial

judge instructed the jury as to how they should deal with this evidence.

11. The D.P.P. in reply pointed out firstly that the gardaí witnesses relevant to the issue strongly denied ever making or being party

to the alleged, or any threats. Secondly, reference was made to the related dicta of State v. Treanor & Ors. [1924] 2 I.R. 193

(“Treanor”), and Griffin J. in People (D.P.P.) v. Shaw [1982] I.R. 1 (“Shaw”), in the context of statements being voluntary and reliable,

with the respondent submitting that in order for the alleged threats to disapply s. 16, such would have to be of a kind sufficient to

vitiate the free will of the witnesses and that such was not the case. The following definition of voluntariness, from Treanor was

quoted:

“… [a] confession made to any person under the influence of a promise or threat held out by a person in authority,

calculated to induce the confession, is inadmissible”.

Moreover, it was stated that, in accordance with People (A.G.) v. Galvin [1964] I.R. 325, there was no causative link between the

alleged threats and the statements, as even if the threats were made, which was denied, any effect thereof had dissipated by the

time each witness made their respective statements.

12. In relation to the failure to view the videotapes, the D.P.P. says that the appellant made no such request of the trial judge. In

fact, despite being explicitly invited to do so he declined to make any application in this regard and therefore cannot now raise the

point on appeal (The People (D.P.P.) v. Cronin (No. 2) [2006] 4 I.R. 329). In addition the trial judge was under no obligation to view

the tapes, either in light of O’Brien or otherwise (paras. 30, 55 and 56 infra). Further, no evidential deficit or prejudice arose as a

result of the judge’s decision: viewing the tapes would have added nothing to the evidence of threats as the same were alleged to

have taken place off camera.

13. Finally, the respondent further noted that all three statements were supported by statutory declaration in accordance with s.

16(2)(c)(i) of the 2006 Act and that the court can also have regard to the nature of the statements in assessing their reliability.

Secondly, while conceding that each statement became “other evidence” as per s. 16(4)(b) of the Act, nonetheless the key is that

they were individually necessary. Thirdly, the appellant conceded that if held admissible, the jury were entitled to rely on the three

statements. In conclusion therefore it was submitted that there is no substance to the s.16 ground of appeal.

The Role of the Court of Criminal Appeal:

14. The Court of Criminal Appeal (“the C.C.A.”) has power to grant leave to appeal in any indictable case where it “is of opinion that a

question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be

any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an

order admitting the appellant to bail …” (s. 32 of the Courts of Justice Act, 1924 (as amended by s. 3 of the Criminal Procedure Act

1993 and s. 31 of the Criminal Procedure Act, 2010, as applied to the present Court by ss. 12 and 48 of the Courts (Supplemental

Provisions) Act, 1961, as amended). As one can see, this jurisdiction is extensive and covers multiple grounds of appeal, many of

which are identified by O’Malley at para. 23.09 of The Criminal Process, (Dublin, 2009). Clearly such is not confined to errors of law:

indeed arguably any matter of substance, which renders the trial unsatisfactory or defective, may be sufficient.

15. Notwithstanding the expanse of this power however, the developed jurisprudence shows that on certain aspects its role is more

limited. One such matter relates to findings of fact made by the trial court which are later integrated into an appeal point on which

the C.C.A. is asked to intervene. Case law shows that in such circumstances the appellate court is very reluctant to, and will rarely

interfere with such findings. This is for much of the same reasons as apply on the civil side, namely the unrivalled advantage which

the trial court has in its ability to see and hear witnesses and to observe their manner and demeanour when giving evidence. Whilst

this applies to all factual conflicts it has particular resonance where not only accuracy, but also truthfulness is an issue.

16. It has been said that such findings to which the credibility of a witness is central, should be left untouched, unless they are “so

clearly against the weight of the testimony as to amount to a manifest defeat of justice”: see The SS “Gairloch”, Aberdeen Glen Line

Steamship Company Ltd. v. Macken [1899] 2 I.R. 1 at p. 18. This case was cited with approval in The People (D.P.P.) v. Madden

[1977] I.R. 336 at p. 339, where having noted the distinction between findings of fact and inferences of fact, the Court went on to

describe its function, as it touches on both, as being “to consider whether any inferences of fact drawn by the court of trial can

properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited

above”. See also People (D.P.P.) v. Kelly [2005] I.E.C.C.A. 50 where the C.C.A. adopted, almost formally, the Hay v. O’Grady

principles on the civil side ([1992] 1 I.R. 210).

17. The relevant issue in the instant case on this ground of appeal relates essentially to findings of fact and not inferences and

further it must be stressed that the findings as made were wholly or substantially based on credibility.

The Statutory Provisions

18. As s. 16 of the 2006 Act is central to the principle submission made, it will facilitate a greater understanding of ground no. 1 if its

provisions are outlined at this point. Section 16(1), which applies to a relevant “statement” on a trial for an arrestable offence, states

that such statement “may, with the leave of the court, be admitted in accordance with this section as evidence of any fact

mentioned in it if the witness, although available for cross-examination– … (c) gives evidence which is materially inconsistent with it”.

19. The section goes on to state that:

16“(2) The statement may be so admitted if—

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied—

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and

(iii) that it is reliable,

and

(c) either —

(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to

the effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the

requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to—

(a) whether it was given on oath or affirmation or was videorecorded , or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it

was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to—

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is

inconsistent with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion—

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused

or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so

admitted, or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from

which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by

written statement) of the Act of 1984.”

20. Before the introduction of this statutory provision, prior inconsistent witness statements were generally dealt with by having the

witness declared hostile and by proving the previous statement(s). The relevant statutory provisions by which this process was

conducted, were those contained in the Criminal Procedure Act, 1865 to which provisions s. 16 is expressed to be without prejudice

(subs. 6). What is important to note is that even if the required steps were successfully taken, the statement’s use was limited to

impeaching the credibility of its maker, the witness: People (A.G.) v. Taylor [1974] I.R. 97. Unless the witness accepted the

truthfulness of such statement it could not be treated as evidence: moreover, the jury had to be so informed, in which regard the

C.C.A. in People (D.P.P.) v. McArdle [2003] 4 I.R. 186 at p. 198 said “it has been regarded as essential to make clear to the jury that

a previous inconsistent statement made by a witness being treated as hostile goes only to his credibility”. Therefore, s. 16 has

reformed the law in a most material way on the use and admissibility of such witness statements, so that those given to the Gardaí

(and it would appear, any other person) can be read into evidence and their substance relied upon for the truth of their content,

even where the witness refuses to testify in court.

21. Moreover, under its provisions a person could be convicted of the most serious crimes known to law, on an out-of-court

statement which is subsequently disavowed on oath by its maker, despite the fact that he and his story may be subject to rigorous

scrutiny under strictly controlled court conditions. Consequently, s. 16 is a fundamental departure from traditional common law

principles which for good reason, have always placed such high regard on sworn evidence given directly, immediately, and

spontaneously before the fact adjudicator. Such principles have their foundation, not solely in the rule against hearsay, but far more

deeply rooted in our criminal law system.

22. The preceding events said to have given rise to the enactment of Part 3 of the 2006 Act, of which s. 16 forms part, are well

known and do not require repetition in this judgment. It can be said however that its provisions were largely intended to deal with

gangland or organised criminality and criminals, many of whom prided themselves as being beyond the law’s reach: in this regard

recourse to the most violent means available so as to intimidate witnesses against doing their civic duty in giving evidence was

common place. The Legislature, as is its right, responded inter alia with the section in question. Its provisions however do not appear

to be so limited in their application, as the instant case shows, where there is an entire absence of any of the features said to have

underlain its creation. One way or the other, both the section’s interpretation and application must be viewed not only in light of the

public interest which it is said to enhance but also within the bedrock of criminal justice overall.

23. This case does not call for an elaborate analysis of the entirety of s. 16 as the instant issue centres on the twin requirements of

“voluntariness” and “reliability”, and on subs. 5 which is particularly relevant given the type of evidence which the section produces.

This in turn feeds directly into the judge’s role in charging the jury in that regard.

24. Before dealing specifically with these matters however, some brief observations on the structure of the section is required. Firstly,

the manner in which the introductory part of subs. 1 is worded should be noted: it states that a relevant statement “… may, with the

leave of the court, be admitted in accordance with this section …”. The use of the word “may”, and not “shall” or similar, in the

context in which it is used, clearly implies a residual discretion in the court of trial, to the effect that the reception of such a

statement does not automatically follow, even if the statutory requirements have been met. If it was otherwise, the wording would

have been such that, on the conditions being satisfied, the court would have been injuncted to admit it, which is not the case.

25. Express recognition is given to this view by virtue of subs. (4)(a), which in fact prohibits a court from admitting a statement,

even if the requisite conditions have been established, where there is a risk of an unfair trial or where the justice of the overall

circumstances require it. Given the significance of the legal alteration which the provision has brought about, such overall discretion is

well justified.

26. Secondly, the section, in addition to having “prohibitory provisions”, also contains what might be called “admissibility provisions”

and “weight provisions”: the former are self-evident from the section itself and includes the requirements above mentioned. The latter

is contained in subs. 5 which reads as follows:

“(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from

which any inference can reasonably be drawn as to its accuracy or otherwise”.

27. Quite evidently, a distinction of some significance exists between both of these provision types. Concentrating on subs. (5), it is

clear that as weight is a sole matter for the trier of fact, it is of primary importance that the jury should be properly instructed in this

regard. In broad terms, an evidential situation will have been created whereby a witness on oath and in the presence of the jury will

be challenged, by reference to a previous statement, as to his or her credibility; i.e. whether or not that person, is/was truthful,

accurate and reliable, now, then, on both occasions, or indeed not at all? Whatever the decision, it will have definite, far-reaching

and almost inevitable implications for the quality of whatever evidence should be relied upon. Therefore, the jury must be instructed

at a general level, and in accordance with subs. 5, at a specific level by reference to particular circumstances. They must be given

guidance as to how to deal with the “same witness conflict” which has arisen and which they are called upon to resolve. This is a

matter further referred to later in this judgment.

28. There is one further aspect of the prohibitory provisions which should be mentioned. As with the risk of an unfair trial and the

justice requirement of subs. (4)(a), a court is also precluded from admitting a statement if “having regard to other evidence given in

the proceedings” such is unnecessary (subs. 4(b)). The key therefore is “necessity”; evidence which is merely supportive, useful,

helpful or even desirable is not sufficient. It must be essential in a material and substantive respect. This obviously means that every

statement, certainly from different witnesses, must, at this time of assessment, be critically judged against the existing evidence.

Anything less will not be in compliance with the “necessity” test.

O’Brien:

29. Section 16 of the 2006 Act, is as yet a relatively new provision; there is to the Court’s knowledge, only one case to date at equal

or higher jurisdiction in which issues of voluntariness and reliability have been considered: that is, O’Brien. In that case, Mr. O’Brien,

as part of his appeal against conviction on charges of sexually assaulting two children, alleged that the trial judge misapplied the

provisions of the section in admitting, as being voluntary and reliable, statements given by one child, aged 9, to a psychologist as

part of the pre-trial interview process. Counsel on his behalf made a number of points in support of this submission including the fact

that the interview took place at an assessment centre which the child had no choice but to attend, that she seemed uncomfortable,

guarded and had to be persuaded to discuss certain matters and that events may have arisen external to the interview room which

could have had a baring on her free will.

30. In dismissing the appeal and in determining that the statements were both voluntary and reliable, the C.C.A. (Macken,

Birmingham, and O' Keefe JJ.), noted with obvious approval, the careful and “conscientious” approach of the trial judge who, having

viewed the video(s) of the interview process in its entirety, placed much reliance upon it. In his decision the learned judge considered

the child’s demeanor, her character – being such that in his opinion she fully understood all questions and was “not open to

suggestion” – her manner of telling the story and how she coherently moved the narrative forward. He concluded that the

statements, which were consistent with others, had not been “cojoled”, in any way out of her. The appeal Court fully agreed with

this impressive reasoning and was quite satisfied that the approach, assessment and ruling of the trial court had been such, that its

conclusions were fully supportable. As there was no evidence to suggest that anything untoward had taken place which was not

recorded, the appeal was disallowed.

31. In reaching the decision as to voluntariness and reliability, the C.C.A. in O’Brien did not draw on any authorities, believing that the

trial judge correctly determined the issue by viewing the videotapes which was sufficient for this purpose. On the facts of the case,

and in the context of a child witness, this decision was clearly correct. However, O’Brien might be considered as circumstance-

specific and thus may be of limited value to other cases involving s. 16. Indeed, as a result, Counsel for both parties in the instant

appeal, which relates to adult witness statements, have sought to rely on the analogous case law dealing with “voluntariness”, in the

context of confession statements. As the Court can see no material difference in the underlying principles, there is no reason why

such should not also apply to that requirement of s. 16 of the 2006 Act. A brief word on this issue may therefore be appropriate.

32. The traditional test of voluntariness in Irish law relating to the admissibility of confessions is to be found in the judgment of

Fitzgibbon J. in Treanor at p. 208 :

“A confession made to any person under the influence of a promise or threat held out by a person in authority, calculated

to induce the confession, is inadmissible, unless it be clearly proved to the satisfaction of the Judge, whose duty it is to

decide the question, that the promise or threat did not operate upon the mind of the accused, and that the confession

was voluntary notwithstanding, and that the accused was not influenced to make it by the previous promise or threat.”

While it is neither neccesary nor desirable on this occasion to outline fully the volumous case law which later followed, it is

nonetheless helpful to sketch some of the salient features, most relevant to this core test.

33. Firstly, as the law has developed, it has become clear that “the form” of inducement which renders a statement involuntary is not

limited to a promise or a threat in any traditional or popular sense. In Shaw at pp. 60 and 61, Griffin J. said that confessionary

evidence should be excluded if it has been obtained by unfair, or oppresive means in that:

“the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical

or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis,

intoxicating drink, by prolonged interrogation or excessive questioning, or by any one of a diversity of methods which have

in common the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational

intellect and a free will.”

34. Contrary to the submissions of the respondants, the test of whether a statement is voluntary, is not entirely subjective, in that

O’Flaherty J., giving the C.C.A.’s judgment in the case of People (D.P.P.) v. McCann [1998] 4 I.R. 397, at p. 411 identifies both an

objective and a subjective element; the learned judge’s description being:

“(a) were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or

promise? (b) Did the accused subjectively understand them as such? (c) Was his confession in fact the result of the

threat or promise?”.

35. In People (D.P.P.) v. Hoey [1987] I.R. 637 (“Hoey”), at p. 649, Walsh J. clarified that the subjective motive or intention of the

person making the inducement is irrelevant, so that “[t]he test is what effect is it calculated to produce upon the person to whom it

was made”. As Henchy J. noted in the same case at p. 652, as has long been established at common law, the burden of proof is on

the prosecution to show beyond reasonable doubt that the statement in issue was made voluntarily, in that it represents the

accused’s own free will and “did not result from the fear of prejudice or hope of advantage excited or held out by a person in

authority.”

36. Finally, the judgment of Kenny J. in the case of Galvin, at p. 335 provides authority that, notwithstanding the making of an

inducement, even one of a type which may otherwise influence the confessor, the confession will nonetheless be considered

voluntary where the prosecution proves that there is no causative link between the inducement and the making of the confession, for

example where, as in that case, the effect of the inducement has dissipated by the relevant time.

37. In summary, as the aforegoing principles apply to the relevant provisions of s. 16 of the 2006 Act, the position of the Court is to

determine whether any relevant statement was made under the influence of an inducement from a person in authority which was

calculated to induce that result. The motive or intention of such person is irrelevant. The test has both objective and subjective

elements. Even if such inducement is found to have been made, but it did not in fact influence the mind of the person in making the

statement, the same shall be regarded as having been made voluntarily and therefore is admissible in evidence. Finally, the burden of

proof lies on the prosecution, where it invokes the section, to show beyond reasonable doubt that the statement was made

voluntarily.

38. The above relates to the requirement of s. 16 (2)(b)(ii): the requirement of reliability, which is separately specified must also be

satisfied (s. 16(2)(b)(iii)). What the precise relationship between both is, has not been explained – neither has what the test involves

or what matters should be searched for before any given statement should be accredited with reaching this threshold. It has been

said elsewhere that the section under review has been modelled on its Canadian counterpart and has also drawn on s. 119 of the

United Kingdom Criminal Justice Act, 2003, as amended. However, as no comparative analysis has been made, nothing further of a

specific nature will be said in this regard.

The Instant Case:

39. The appellant submits that the evidence relied upon by the prosecution was not sufficient to support the finding that the

statements of Ms. Coady, Mr. Dennehy, and Mr. Coady which inculpate him, were made voluntarily and were reliably within the

meaning of s. 16 of the 2006 Act.

40. At the beginning of Day 4, after Ms. Coady had given evidence, Counsel on behalf of the D.P.P. informed the trial Court, that all

relevant interviews giving rise to the s. 16 applications were video-recorded, and that such were available for the Court’s inspection,

if it so wished. However, the prosecution did not itself seek to have these tapes looked at. The judge did not require to have them

played and on inquiry was told by defence Counsel, that no contrary application was being made by him. At the conclusion of the

tendered evidence the judge ruled on the issue in the manner appearing at para. 46 infra.

41. The relevant evidence given as part of the voir dire shows that Ms. Jannette Coady first made a witness statement on the 27th

April, 2007 in which she did not in any way implicate the appellant. She was subsequently arrested very early on the morning of the

1st May, 2007 under s. 30 of the Offences Against the State Act, 1939, on suspicion of withholding information and detained for two

days. She was interviewed in all about 10 times: she implicated the appellant for the first time in an interview on day two which

commenced at 2.52 p.m.. This was not however the subject matter of a s. 16 application. During the course of her evidence, Ms.

Coady said that she was threatened by the gardaí that she would be sent to Limerick prison for five years and that her 5 year old and

8 month old children would be taken from her, if she did not implicate the appellant; however if she did, she could go home. She

alleged that she was told what to say by the gardaí in this regard whilst in the interview room, but before they set the videotapes to

record, prior to the 2.52 p.m. interview. Ms. Coady continued to be interviewed during her remaining period in custody, from which

she was released on the 2nd May, 2007 at 8.20 p.m.. She is alleged however to have returned to the garda station at 8.26 p.m. –

just six minutes after her release – on a totally voluntary basis and made the witness statement at issue, incriminating the appellant.

42. Mr. Dennehy was likewise arrested on suspicion of withholding information on the 1st May, 2007. As with Ms. Coady, who was his

partner and mother of his two children, Mr. Dennehy was also detained for two days and interviewed 10 times (c.). He did not in any

way implicate the appellant during any of these interviews. However, Garda Detective Sergeant P.J. Griffin gave evidence at the voir

dire that Mr. Dennehy “intimated” in the last interview, that he “wished to tell the truth and make a voluntary cautioned statement”.

He was subsequently released from custody, at 9.21 p.m. on the 2nd May, 2007, before the detention period had expired, but

immediately and entirely voluntarily returned to the garda station at 9.26 p.m. – just 5 minutes after his release – and gave the

statement at issue, inculpating the appellant. It was alleged by Mr. Dennehy that this statement was made as a result of threats

which were repeatedly made off camera by the interviewing gardaí during the second detention day, at different times between

interviews and whilst in his cell. He further stated that he was threatened that a special sitting of the District Court would be

convened that night, that he would spend 5 years in jail, that his children would be taken from him and that his face would be on the

9 o’clock news.

43. The third relevant witness, Mr. John Paul Coady, a brother of Ms. Janette Coady, was also arrested on the 1st May, 2007 under s.

30 of the Offences Against the State Act, 1939, as amended, detained for 2 days and interviewed a number of times. He admitted to

having consumed €50 to €100 worth of amphetamine and 10 to 12 cans of alcoholic beer on the morning of the fire. Statements were

made during his detention which did not in any way implicate the accused nor did he intimate prior to release that he wanted to

change his statement in order to so do. He was however aware that his pregnant girlfriend, who was also arrested and had been

taken from the garda station to hospital where she was questioned by the gardaí. He was informed that his mother was hysterical,

leading him to believe that she was “locked up” at that point. He was released from custody on the 2nd May, 2007, and travelled to

Galway with his girlfriend, but was followed there by the gardaí. Both individuals were approached and he was invited to make a

voluntary statement. It was subsequent to this, that Mr. Coady went to the garda station and made the statement which implicated

Mr. Murphy. While he admitted in evidence that the gardaí never explicitly threatened re-arrest of him or his girlfriend at any stage,

nonetheless he alleged that he made the statement under the belief that if he did not, he and his girlfriend would be locked up.

44. The relevant gardaí, including Detective Sergeant Tierney, Detective Sergeant Griffin and Sergeant O’Dwyer, all “robustly” (to use

the D.P.P.’s expression) denied ever making the alleged or any threats. Detective Sergeant Tierney explained Ms. Coady’s reference

to 5 years in Limerick prison, as coming from information, which as a matter of routine, every suspect would be given, as such

persons are entitled to know what is facing them if convicted. This it was contended could not constitute an inducement such as

could render a statement involuntary or unreliable within the meaning of s. 16 of the 2006 Act. Therefore the allegations of threats as

made had been fully responded to by the gardaí.

45. Submissions were then made by Counsel for both prosecution and defence, with the D.P.P. asserting that the statements met the

criteria specified in s. 16(2)(b)(ii) and (iii) of the Act.

Ruling of the Trial Judge on Admissibility of the Statements:

46. Holding that the three witness statements were admissible under s. 16 of the 2006, in a judgment which amounted to just over a

page of transcript, the learned judge set out his ruling on the voir dire as follows:

“Well, the various subsections of section 16 have been opened to me, and Mr. Dillon has gone through them all in effect.

Some of them are not applicable to the circumstances in this case. But with regard to the various proofs that the

prosecution has in order to obtain an order of the court under section 16 of the act of 2006, the various requirements

must be met. The nub of this case is whether or not, to the satisfaction of the Court, on the criminal standard the

evidence, the statements in question were made voluntarily and whether they are reliable.

…

Now, I have the evidence of various gardaí and I have the evidence of the three prosecution witnesses -- lay prosecution

witnesses, and in relation to those, I am satisfied that the various requirements placed on the prosecution in relation to

such an application have been met. I am satisfied that all three parties were interviewed over two days in garda custody

and that they were arrested on suspicion of withholding information. I am satisfied that the investigation by the gardaí

was properly and correctly carried out; the various interviews were recorded, statements made were recorded, and I’m

quite satisfied that if there were some element of the questioning during the interviews or of the taking of statements

which was -- which pointed to the lack of voluntariness or indeed lack of reliability of the statements then they may

have been adverted to by the defence on the basis of the video evidence. I am satisfied that the statements which were

made were in certain respects consistent with each other and I am satisfied that they were validly made. When I say

validly made, that is voluntarily and that they are reliable in relation to the events of the night. That being so, I will allow

the evidence to be put before the Court, before the jury” [emphasis added].

47. The remark made by the judge as emphasised in the passage, was open to the interpretation that the onus of proof, at some

point, rested on the defence with regard to the requirements of voluntariness and reliability. Of course this is not so. Such concern,

very properly so, was brought to his attention by defence Counsel on the following day, who expressed some anxiousness about what

had been said. The judge fully assured him of his appreciation as to where the onus rested at all times. This exchange resolved the

matter and no individual point on this issue is taken in this appeal.

48. It seems clear from the synopsis of evidence as above outlined, that there was a “head-on” conflict between the gardaí’s

evidence and that of the lay witnesses, on the issue of threats, all of whom were of course also prosecution witnesses. In this

regard, no distinction has been made between these three witnesses, although evidently the position of Mr. John Paul Coady differs

from the other two both on fact and legal consequences, other than to note that the crucial evidence was that as contained in the

statements of Ms. Coady and Mr. Dennehy.

49. As the transcript shows this situation was not one where the allegations were met with some partial denial, or an assertion that

while something was said, it had an entirely benign meaning and was in a context readily explainable (apart from the explanation

offered regarding reference to 5 years in Limerick prison). It was also not a situation where the issue could have been resolved by

some form of intermediate finding such as, that some aspects of the assertions were correct and others not. The fact of the matter

is that certain accusations were made, being in many respects quite specific as to substance, and were strenuously denied by those

accused of making them. Oral evidence was given by all concerned with each person being subject to cross-examination. The focus

of the D.P.P. approach on this issue was not directed at testing memory or recall: it was pointedly based on truthfulness. Therefore,

it is difficult if not impossible to see how the judge’s conclusion could have been reached other than by his assessment of witness

credibility.

50. It is regrettable however that the ruling of the trial judge, described by the D.P.P. as “terse, but adequate”, was not somewhat

more detailed or discursive than what it was. Unfortunately, but factually, it is not informative to an appellate court to simply say

that statutory conditions have been met: this is a conclusion which follows from a preceding finding, the basis for which should be set

out. As matters were left, one cannot identify any express finding, particularly of fact, on which this conclusion was based. There is

no stated explanation or reasons given for the judge preferring some witnesses over others or what impressed him about those whose

evidence he ultimately accepted. The resulting difficulty is well demonstrated by reference to the following comment of Ms. Coady

made at 2.52 p.m. on the 1st May, 2007: “I have told you the truth. I don’t want to go to Limerick prison”. While it is certainly true

to say that such a fear of going to prison may indeed arise from the circumstances explained by Detective Sergeant Tierney (para. 44

supra), it is also certainly possible to consider what was said, as being both plausible and viable, and as a result to view it as giving

credence to her allegations. In such circumstances it would have been helpful to know how this conflict was resolved.

51. Another example relates to the timeline of Ms. Coady’s release from custody at 8.20pm on the 2nd May, 2007, and her almost

immediate return – some six minutes (which the prosecution maintain was voluntary) – which is undoubtedly curious. Ms. Coady gave

evidence that before she went back in, she asked whether, if she did not make a statement inculpating the accused, she would be

re-arrested, but that the gardaí did not answer. This she claimed instilled a fear in her that she would be arrested again, which at

least in part motivated her return and the making of the later statement. Similar concerns relate to the circumstances involving Mr.

Dennehy. Again, it is unclear why such evidence was rejected.

52. As is clearly the case, this voir dire was dealing with a key issue regarding the critical legal vehicle which gave rise to evidence

without which, Mr. Murphy could not have been convicted. Obviously therefore, the issue could not have been more important. As a

result, some reasons expressed to cover the main areas in controversy are required. Indeed, if the evidential conflict had not been as

sharply exposed as what it was, a real difficulty may have arisen in this regard.

53. However, and despite the brevity of the ruling, this Court is satisfied that the only inference possible is that the views of the

learned trial judge were purely credit related. Undoubtedly there was evidence upon which he could reach the finding which he did.

Given his distinct advantage of being observant of the witnesses when giving their evidence, and the corresponding disadvantage of

this Court in not having that facility, such findings therefore cannot be interfered with in the instant case.

54. This is not to say however that a contrary finding in support of the allegations was not likewise open on the evidence. If the

learned judge had so decided, the same logic would apply. In light of the evidential scaffolding which created such diversity and

noting that the facility of viewing the video recording was not availed of, a word needs to be said about the latter.

55. The appellant has submitted that O’Brien provides authority that, where available videotapes must be viewed in determining the

twin requirements of voluntariness and reliability under s. 16 (2)(b) of the 2006 Act. The Court cannot support this interpretation.

Nowhere did the judgment so state: in the events which happened, it was not even in issue as the recording was fully considered in

that case. Although clearly impressed with how important the viewing of such was to the trial Court, and whilst endorsing such an

approach, the C.C.A. did not, as a matter of law, mandate it.

56. Consequently, in the absence of any statutory requirement to this effect, the Court agrees that the trial judge had a discretion in

this matter. In many cases, how that will be exercised will become obvious, if not at the commencement of the s. 16 application,

certainly before it is ruled upon. There will be a small number of cases however, of which O’Brien is one, where such viewing can only

be beneficial. It is not of course possible to identify these en bloc or to devise a preset formula which would offer a ready-made

answer in all circumstances. However, where the conflict, based on potentially feasible but conflicting evidence, discloses a situation

of seriousness for either the prosecution or the defence or for a particular witness, it is difficult to see what disadvantage there is, in

being aided by such a source. A court can never be too informed where the resulting decision can be decisive. Justice for all is best

served by prudence.

57. Ireland has been considerably slower than many of its counterparts in adopting electronic recording of interviews. Section 16 of

the 2006 Act does not specify such a requirement: if however interviews are so recorded, regard may be had to the tapes, but it is

not mandated. While concerns have been raised about the danger of tampering, such as editing or manipulation of perspectives, it

cannot be questioned but that videotaping captures significant pauses or hesitations, mannerisms, behaviour, gestures or images of

facial expressions. Videotapes therefore have the potential to be particularly useful in dispelling suspicions regarding the voluntariness

or reliability of statements, and in protecting the gardaí from allegations of improper conduct. This sentiment is undoubtedly evidenced

in s. 16 of the 2006 Act and the significance it attaches to video-recordings. Therefore, in light of the importance attached to such a

facility and in the presenting circumstances, the trial judge might have been better informed had the tapes been viewed.

58. However, it follows from what is above stated that a failure, in and of itself to view a recording, without reference to

consequences, cannot constitute a sustainable ground of appeal. Therefore, even if Cronin did not stand in the way of this argument,

it would have to be rejected. In this context it should be noted that what the Court has done is to decide the submission on the

evidence actually available and not on what might have been, if the discretion had been exercised. Its resulting conclusion in this

regard is that as outlined above.

59. Finally it should be noted that Counsel for the respondent referred to Galvin where it was held that the effects of a remark at

12.10 a.m. would have dissipated by 2.40 a.m.. This was because the accused had been cautioned twice in the intervening period,

his detention status had changed in that to his knowledge he was then being held regarding the murder under investigation and

because the questioning had ceased some hours before the making of the alleged threat: the same therefore could not have affected

his mind when the admission was made. However, in the case of R v. Doherty (1874) 13 Cox C.C. 23 the Court refused to accept that

the affect of an inducement had dissipated between 10 a.m. and 6 p.m. of the same day either simply by the time interval involved or

the fact that the accused was cautioned before the admission. Whiteside C.J. (at p. 24) said that it was necessary to show that the

subsequent caution had the effect of removing the inducement from the accused’s mind and that such had not been established in

the case.

60. This type of point does not arise on the facts of this case as, if the alleged threats were found to have been made, there is no

doubt in this Court’s mind but that the resulting statements would be clearly inadmissible. It needs no debate to conclude that the

nature of what the witnesses complained of were such that the passage of time could easily have an appreciating rather than a

decreasing effect on their free will. However, as stated, the finding was that no threats were made: therefore such case law is not

relevant to the instant appeal.

61. At para. 28 supra this Court touched on the “necessity” provision contained in s. 16(4)(b) of the Act. It would appear in this case

that instead of each application having been dealt with separately, all three were considered and ruled upon concurrently. Such an

approach is not in compliance with the statutory requirement. However, as what the trial judge did was carried out without objection,

the Court does not consider it appropriate to now permit the appellant to rely upon this point.

62. In conclusion, by reasons of the matters above stated, this aspect of ground no. 1 must be rejected.

Corroboration Issue:

63. In light of the s. 16 evidence admitted to the jury as well as the evidence that all of the lay witnesses were intoxicated on the

night in question, defence Counsel, as part of his requisitions, made an application to have a corroboration warning given. Contrary to

the written submissions of the appellant however, the prosecution, instead of conceding the point, vigorously argued that to give

such a warning would have the effect of “… watering down completely the value of s. 16”, and that to give a corroboration warning

would be “to overemphasise” the issues, and it was therefore unnecessary to do so.

64. The trial judge then informed Counsel what he intended to say to the jury in this regard:

“… that if they do not find corroboration from any other source, corroboration for the three section 16 statements, then

they must look at the situation where there is no corroborated evidence and they obviously have to have -- to weigh the

importance of that, that it is uncorroborated evidence”.

In addition, after being specifically requested to do so, he agreed that he would explain to the jury the exact meaning of

corroboration, it being a term of art.

65. On the recharge the jury was addressed as follows:

“there’s no requirement that I do this but I think I should, that if you find that there is no corroboration for what is set

out in the three statements that have gone before you in that form from any other source, if you find that there are none

of the other matters referred to the jacket or what was said in the police station by Mr. Murphy indeed don’t afford any

corroboration, then you’re left in a situation where there is -- the evidence is uncorroborated unless of course you have

find that the three statements corroborate each other. If you find that you’re only relying on one matter which is

uncorroborated then just bear that in mind that you need to exercise a great deal of caution with regard to that

situation”.

66. The learned judge was further requisitioned and asked to specifically explain what corroboration meant as he had agreed

previously to do, and to clarify that the statements could not corroborate each other, but that rather, each one requires independent

corroboration. Having rejected the latter proposition, he did however agree to further explain the meaning of corroboration, and went

on to say:

“I had intended to say to you what corroboration is. You probably know very well already what it is, but lest there be any

doubt, what it is is some piece of evidence which tends to bear out the veracity of another piece of evidence. In some

instances you might have objective verification, perhaps somebody saying he was travelling at 35 miles per hour and then

when they -- at a particular point and then when the tachograph was looked at afterwards it confirmed that that was

the speed that was being travelled at, usually it’s not objective like that. Usually it’s -- where there is corroboration is

corroboration again from another human agency, so that it is a piece of evidence which tends to bear out what is

contained in another piece of evidence.”

67. It is submitted on behalf of the appellant, that such was likewise deficient. The respondent again took issue and by reference to

People (D.P.P.) v. Gilligan [2006] 1 I.R. 107, asserted on this appeal that the actual wording used by the Judge constituted an

adequate and safe warning to the jury.

68. Corroboration in essence may be defined as independent evidence which implicates the accused, in a material way, in the offence

charged. Many years ago it was authoritatively articulated by Lord Reading C.J. in the English Court of Criminal Appeal in R. v.

Baskerville [1916] 2 K.B. 658 at p. 667 where he stated:

“… evidence in corroboration must be independent testimony which affects the accused by connecting or tending to

connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some

material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”

69. This dicta has been approved and applied by the Irish Courts on numerous occasions: see for example People (A.G.) v Phelan

(1950) 1 Frewen 98 at p. 99 and more recently in People (D.P.P.) v. P.C. [2002] 2 I.R. 285, where this Court, confirmed (at p. 300)

the following definition of “corroboration” as:

“… independent testimony or evidence which affects the defendant by connecting or tending to connect him to the

crimes alleged. It is evidence which implicates him which confirms in some material particular not only the evidence that

the crime has been committed but also that the accused committed it” (pp. 297 to 298).

The reference to evidence being independent means independent of the evidence in respect of which corroboration is thought

necessary. Such evidence also of course, must always be credible.

70. Thus, whilst evidence, in order to be corroborative, “does not have to directly prove that the offence was committed” (People

(D.P.P.) v. Meehan [2006] 3 I.R. 468 at 491, para. 56), nor does it have to “corroborate the whole of the evidence of the witness

who requires corroboration” (People (D.P.P.) v. Murphy [2005] 2 I.R. 125 at 159, para. 103, citing Richard May, Criminal Evidence (2nd

ed.), p. 330), nonetheless it must be some independent evidence which implicates the accused in the offence charged in some

“material particular”.

71. Moreover, while it has been repeatedly stated by the courts that the wording of a corroboration warning does not have to take

any particular form (see for example People (A.G.) v. Williams [1940] I.R. 195 (“Williams”), and People v. P.J. [2003] 3 I.R. 550), there

are nevertheless, certain essential elements which must be incorporated so as to avoid the charge being susceptible on appeal. At its

most fundamental, the warning should communicate in clear and unambiguous terms to the jury the risks, howsoever valued or

appraised, of convicting an accused on uncorroborated evidence. They must be made aware of the possible associated danger of

relying thereon (People v. Cradden [1955] I.R. 130 (“Cradden”)at 141).

72. Coonan & Foley, in The Judge’s Charge in Criminal Trials (Dublin, 2008) note at paras. 33-24 to 33-26 that it will generally not

suffice for a judge to simply refer to the danger of convicting on uncorroborated evidence. Rather,

“the trial judge must contextualise that foundational principle with reference to the particular facts of the case. Thus, the

trial judge should provide the jury with some guidance as to precisely why – in this case – it may be dangerous to act on

uncorroborated evidence” (para. 33-24).

The authors go on to state that, as the danger may be due to a number of factors, it is for the trial judge to contextualise the

warning by outlining those factors, including those relating to different facets of the evidence (see: People (D.P.P.) v. Gilligan

(Unreported, McCracken J., 8th August, 2003)). As a result of this contextualising endeavour, the degree and gravity of the warning

appropriate “may vary with the degree and gravity of the risk involved in accepting the evidence which requires corroboration”

(Cradden at p. 141).

73. In the further case of The People (D.P.P.) v. Gilligan [2006] 1 I.R. 107, Denham J. said that there may be multiple factors relevant

and that:

“[t]he likelihood of the trier of fact requiring corroboration will rise as the factors multiply … These multiple factors go to

the issues of credibility and to the weight to be attached to the evidence. Thus they should be assessed in light of all the

circumstances of the case. However, it is open to the trier of fact to determine that in spite of these multiple factors the

credibility of a witness is such that corroboration is not required and that significant weight may be given to his evidence”

(at pp. 142 to 143, paras. 85 to 87).

74. Finally, the judge, having explained to the jury what corroboration is, must also identify the specific items of evidence which are

capable of amounting to corroboration (People (D.P.P.) v. M.K. [2005] 3 I.R. 423), and whilst the judge is permitted to comment upon

the weight and character of such evidence, nonetheless he must make it clear to the jury that it falls solely to them to determine

whether or not any particular piece of evidence in fact amounts to corroboration (R v. Stephenson [1947] N.I. 110; R. v. Vallance

[1955] N.Z.L.R. 811).

75. Furthermore and a matter of some importance is that the judge must alert the jury, where appropriate, to a situation where in

fact there is no evidence before the court which can constitute corroboration (Williams, at p. 204).

76. In the instant case it has not been submitted that the learned judge was obliged to give a warning, but that having decided to so

do, it must be given correctly. This proposition is self-evident. Unfortunately however, what was articulated in purported compliance

with the relevant principles was inadequate, incomplete and apt to confuse, in a number of respects.

77. Before commenting on these matters it should be pointed out that this Court agrees with the views of the trial judge that,

provided such statements are credible, each is capable of corroborating the other, with it being a matter for the jury to determine if

in fact they do so. No case law has been cited to the contrary and such view accords with general principles. The reference to the

supporting evidence being credible is a requirement of all evidence, not just that offered as corroborative or in a s. 16 context.

78. The judge’s description, given on the recharge, of what constitutes corroboration at a general level failed to convey a number of

key elements involved, such as the “independence” required of the evidence, and the establishment, of a significant link or connection

between such evidence, the accused person and his guilt or innocence, relative to the particular crime. Secondly, the judge should

have highlighted the issues surrounding the admissibility of each statement, in particular the fact that inconsistent evidence was

given at trial by the makers of such statements, and otherwise should have contextualised the background circumstances. Thirdly, it

was not correct to suggest that corroboration may be found “from any other source”: rather, the jury should have been specifically

informed that on the testimony available there was in fact no other evidence capable of being corroborative save for the statements.

By phrasing it as it was and in the absence of a clear statement to this effect, the jury may well have felt at large to treat any type

of evidence as being corroborative. Fourthly, to limit the warning to situations where the jury decide to rely on only one

uncorroborated matter, was in the context not meaningful.

79. Consequently, viewing what was said overall in this regard, it must be concluded that the direction was deficient in a number of

important respects which were at the centre of the case. This must be regarded as a matter of serious significance, particularly

baring in mind the potential dangers of convicting on the basis of statements that had been introduced pursuant to s. 16 of the 2006

Act.

The Charge in Relation to the Statements:

80. This matter must be considered in the specific context of the provisions of s. 16(5) of the 2006 Act, as well as at a more general

level, given the type of evidence which results from and is facilitated by that provision. Although subs. (5) has been quoted

previously it helps to do so once more. It reads:

“In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from

which any inference can reasonably be drawn as to its accuracy or otherwise.”

81. It is beyond doubt but that in accordance with the standard structure of a criminal trial, all matters touching on the issue of

weight are for the fact adjudicator to determine – subs. (5) expressly so states but even in its absence such is clear. In any event

this is not an issue in the instant case. By the stage of a trial when this issue becomes live, the question of admissibility will have

been dealt with. “Admission” however simply means that the statements are available for consideration: nothing more. The preceding

decision in that regard, is entirely separate to the obligation of the jury to value such evidence. It need hardly be stated but that the

weight so attaching may differ greatly depending on circumstances. The range may vary from treating a statement as having no value

to one equating its content with full reliability. Therefore this assessment is a mater of fundamental importance within the trial.

82. It is scarcely open to argument but that appropriate directions must be given to the jury, so that they are properly equipped to

conduct the exercise demanded. This means that all matters directly and indirectly relevant to accuracy and reliability must be

brought to their attention. In the instant case these would include the circumstances by reference to which the statements were

admitted, and on the gardaí side, the fact that each was supported by statutory declarations and on the lay witnesses’ side, the

individual explanations offered by them for making the statements and for later recanting them. These are but examples of specific

matters and do not take from the more general instruction which is required. Unless the jury is so fully informed, their critical role in

this context will almost certainly be impaired and could easily be fatally jeopardised.

83. Complementary to what subs. (5) states is what constitutional justice requires of a direction where the jury has such evidence

before it. Because s. 16 is of recent origin, as therefore are the issues resulting from its operation, the courts have yet to determine

the type of charge which would appropriately meet this changed situation. Accordingly, what is said must be regarded in that light

and at the level of principle.

84. The approach suggested could conveniently have a general and specific level to it. General as in all cases where s. 16 is invoked

and specific as to particular circumstances, relating to the individual case and that or those aspects of the section which are

involved. In addition it will be necessary to isolate the evidence at issue and to treat it quite distinctly from the more general

observations which trial judges usually make on the body of the evidence available.

85. On the general side, it seems to this Court that reference should be made: to the historical role of the Hearsay Rule and the

reasons that lay behind it; to the court’s longstanding preference to have guilt or “innocence” determined by direct sworn evidence,

tested by the safeguards which exist; to the differences between oral evidence and witness statements made pre-trial without

judicial control; to the existence of such statements and to sworn evidence which may deny their existence, or their content or be

materially inconsistent with them; to the difficulties of reliability presented by such conflict involving the same witness and to the

potential dangers of relying on anything which that person may have said, either then or on oath before them, and if they should so

rely, what on and to what extent. Finally however, they should also be told that, having regard to the direction as given, it remains a

matter exclusively for them to determine what weight or value, if any, they place on the witness’s overall evidence, whether given

outside trial or before them.

86. On the specific side they should be instructed, having regard to s. 16(5) of the Act in such a manner so as to reflect the

circumstances particular to the case at trial, which in the instant case would include the matters referred to at para. 82 supra.

87. The above approach finds support from the case of R. v. B. (K.G.) [1993] 1 SCR 740, a Canadian authority on somewhat similar

provisions: the relevant quote is at p. 804 of the report and reads:

“In either case, the judge must direct the trier of fact to consider carefully these circumstances in assessing the

credibility of the prior inconsistent statement relative to the witness’s testimony at trial. For example, where appropriate

the trial judge might make specific reference to the significance of the demeanour of the witness at all relevant times

(which could include when making the statement, when recanting at trial, and/or when presenting conflicting testimony at

trial), the reasons offered by the witness for his or her recantation, any motivation and/or opportunity the witness had to

fabricate his or her evidence when making the previous statement or when testifying at trial, the events leading up to the

making of the first statement and the nature of the interview at which the statement was made (including the use of

leading questions, and the existence of pre-statement interviews or coaching), corroboration of the facts in the

statement by other evidence, and the extent to which the nature of the witness’s recantation limits the effectiveness of

cross-examination on the previous statement. There may be other factors the trier of fact should consider, and the trial

judge should impress upon the trier of fact the importance of carefully assessing all such matters in determining the

weight to be afforded prior inconsistent statements as substantive evidence”.

88. This particular issue regarding the quality of s. 16 evidence and how it should be viewed was raised at the trial by defence

Counsel. While conceding that there was no law at that time to the effect that s. 16 type evidence should be treated differently to

any other evidence, Counsel, nonetheless stated:

“[b]ut I think in the light of the kind of evidence given in this case and also having regard to the dangers of juries

convicted on statements in themselves that a corroboration type warning should be given to the jury, that it would be

very dangerous to convict on that type of evidence without corroboration of some kind”.

89. While made in the context of application for a corroboration warning, the concern as to the quality of the evidence and the

prospect of the jury relying thereon is worthy of note. This issue of quality and the appropriate instructions for the jury was also

raised during exchanges between the Court and Counsel as the appeal progressed. White J. did so, having concerns in this regard as

had the other Court members.

90. In charging the jury as to the s. 16 statements, the judge outlined that the three witnesses were arrested on suspicion of

withholding information, were questioned and later released. He noted that Miss Coady and Mr. Dennehy were immediately asked

would they return to the garda station and agreed to do so: in that context they made the statements in issue, having declared that

what they were about to say was true to the best of their knowledge and belief and that they would be liable to prosecution if

anything should be found to be untrue. While he did remark that Mr. Coady, having left that station, was interviewed a day later in

Galway and that he had made a similar declaration, he did not mention that this witness and his pregnant girlfriend were followed

there, and invited by gardaí to make the statement, though this was admitted by the guard in evidence.

91. The judge then pointed out that the jury had seen the videos of those statements the day before and that the prosecution

claimed that they were made voluntarily, whereas the defence’s case was that they were made involuntarily. Notably, he did not in

any way allude to the type, form, or content of the inducements alleged by the witnesses. The judge explained that he had admitted

the statements pursuant to statute and cited the key elements of s. 16(1). He pointed out that manslaughter and arson are

arrestable offences and that the evidence of the three witnesses was materially inconsistent with the corresponding statements

which they made in the garda stations. He noted that the statements were proved to have been made and that direct oral evidence

of the fact concerned would be admissible in the proceedings, in accordance with s. 16, subs. (2). He further outlined that subs. (2)

provides that such statements may be so admitted provided that they are made voluntarily and are reliable. From there he stated:

“[n]ow, it is contested by the defence that the statements were made voluntarily and it is also contested that they are

reliable. And that’s a matter that you must adjudicate on now as something within your province. … [T]he central nub of

this case, ladies and gentlemen, is whether or not those statements were made voluntarily and whether they are reliable,

and that is effectively will be for you to decide”.

92. This charge, as so formulated, was inadequate, apt to confuse and misconstrued the direction requirements inherent in and

stemming from the section. It is for the judge, under s. 16, to rule on admissibility, which involves determining whether each

statement was made voluntarily and whether in the circumstances each has sufficient characteristics of reliability such that it is

capable of being relied upon. If any statement fails one or both of those indispensable prerequisites, the judge must disallow their

introduction. Admissibility, as has been said, is therefore the lone province of the judge. Once admitted, it becomes a matter solely

for the jury to decide what weight, if any, to attach to the evidence so outlined, which clearly involves a right to attach no weight, if

they so decide. That is purely a jury matter. The charge as formulated by the trial judge however blurs this distinction between his

role and that of the trier of fact.

93. In addition, in light of the foregoing observations, there were a number of inadequacies with the relevant portion of the charge.

Most fundamentally, he failed in an overall and balanced way to impress upon the jury the importance of carefully assessing all factors

as part of determining what weight they should assign to the out-of-court made inconsistent statements as substantive evidence, in

fact it is difficult to see if the jury were ever informed of their duty generally to determine the issue of weight. Further, it could not

be said that he sufficiently isolated the evidence pertaining to the s.16 statements, from the rest of the evidence upon which he

made general observations. Nor did he at any point allude to the historical role of the hearsay rule, the reasoning behind it, the

traditional preference to convict based on direct sworn evidence, or on the difference between oral and pre-trial evidence. He simply

noted defence Counsel’s argument that any evidence from the three witnesses must be viewed as suspect and unreliable in light of

their subsequent inconsistent statements, and it would therefore be unsafe to convict. This method of commenting on the evidence

by simply repeating what Counsel has said, is no substitute for observations coming directly from the judge himself. Such lacks the

direct authority of the judge. In addition, he did not explain any potential dangers of relying thereon.

94. More specifically, while the judge did summarise the key points of the prosecution and defence arguments, including noting that

the statements were supported in effect by statutory declaration, he did not identify the inconsistencies in the subsequent witness

testimonies other than saying very generally that the evidence given under oath contradicted the evidence which he highlighted in

summarising the case for the prosecution. Moreover, he did not outline the explanations proffered by the witnesses for contradicting

their previous statements.

95. It must immediately be said that the trial judge was offered very little, if any, meaningful help in this aspect of his charge, with

the result that the importance of appreciating what type of evidence s. 16 unfolds was largely overlooked. Unfortunately however,

the corroboration warning exacerbated the situation rather than alleviating it. In such circumstances this Court, given the significance

of the s. 16 evidence, cannot overlook what ultimately must be regarded as an inadequate charge however precisely that came

about. Such is so deep-rooted in the conviction that the latter cannot be allowed to stand.

96. Finally, on a related point, it was also submitted that in responding to a requisition, the judge was labouring under the

misapprehension that he had charged the jury to the effect that if unsatisfied as to the reliability of the statements they should

acquit the accused. As a matter of fact he has not done so.

Evidence of Miss Maura Hennessy, Solicitor:

97. There is one other aspect of the trial which must be referred to. During the voir dire, when questioned whether he had made a

complaint about the gardaí, Mr. Dennehy negatively replied and offered his fear of re-arrest should he have had done so: he did

indicate however that both Ms. Coady and he went to a solicitor about this matter, but that “she just wrote down the threats” and

that he had not heard from her thereafter. The voir dire continued to completion with the witnesses’ evidence resting as stated. It

should be noted that prior to this disclosure, defence Counsel was not aware of such a visit.

98. Subsequently, the solicitor in question, Ms. Maura Hennessy, was contacted and later gave evidence, but only at a point

subsequent to the judge’s ruling on the voir dire. She said that both Ms. Coady and Mr. Dennehy came to her office on the 3rd of

May, 2007, but being absent therefrom, her receptionist took the note of what they had to say. That detailed memo dated that same

day was read into evidence, and included the following:

“[t]he above call to the office and wanted to see a solicitor. They were held in Tipp town station and say they were

made to say that Jason Murphy told them that he lit the fire under the car, that they maintain he never told them that,

and they only said he did because they were forced by the guards to do so. They had no solicitor present and were

brought in for withholding information”.

99. She further gave evidence that they both called in again on Tuesday the 8th May, 2007, at which point she personally met with

them and took an attendance. Part of that attendance was also read into evidence:

“They said to Jonathan that if he didn’t tell, and I have in quotation marks, ‘The truth, his two kids, mortgage and his job

in Bulmers would be gone.’ … [He said that] ‘[a]ll this [happened] before they turned the video on.’ They were saying that

he was the last person in custody, and that …Jason Murphy, had told them and the other two that he had set fire to the

car, and that the others had told the guards this and had now gone home”.

100. Reading further from her attendance she recorded that they told her: that the gardaí had threatened them both that their two

children would be taken from them; that they were released but invited to come back and make a statement; that they were both

told that they were facing five years in prison if they did not make the statements; that Ms. Coady was not allowed to ring her

mother who was caring for the children at that time and that she was not aware that she could have a solicitor with her. Moreover

they told her that neither of them saw Mr. Murphy or another named person coming out of the lane and they claimed that “everything

they told the guards [in those statements] were lies” and that it “completely did their heads in”.

101. Ms. Hennessy subsequently wrote to them both on the 10th May, 2007 saying that it would be possible to get a copy of those

statements, that they could make further contradicting statements and asking them to contact her to advise whether or not they

wanted her to pursue same.

102. In response to this letter, Ms. Coady rang and spoke with Ms. Hennessy, who made a note of the conversation and attached it

to the file. While the precise date is unknown, it reads:

“[i]f we can be sure they won’t be re-arrested they’ll go along with this. Otherwise, no, as Jonathan’s job would be at risk

and they have two kids and a mortgage”.

103. Finally, Ms. Hennessy again wrote on the 25th May, 2007 informing them both that while she understood their concerns, the

gardaí could not bring them in for questioning in connection with the same matter, but that “of course, they could bring [them] in for

any other matter that they might have a legitimate purpose”.

104. This was the last contact between Ms. Hennessy and the two witnesses. It should be noted before leaving this evidence that

the witness was not challenged as to the accuracy of the records produced by her.

105. No blame attaches to any individual for Ms. Hennessey’s evidence not being available during the voir dire. However, such was

clearly of significance in that if accepted it was fully consistent with the threats alleged to have been issued by the interrogating

gardaí. Such evidence undoubtedly was relevant and also potentially of considerable significance. Whilst one cannot say what weight

in fact the trial judge would have attached to it, nonetheless, at the least, it had the potential of being influential if not persuasive or

even decisive. It may therefore have had an effect on the admissibility ruling.

106. Consequently, though no fault attaches to any party in respect of this mater it also renders the trial unsatisfactory.

107. In conclusion, by reference to all of the above matters, this Court is of the view that the trial in an overall way was

unsatisfactory and that the conviction should be set aside.

108. In the circumstances, the other submissions as made do not arise for consideration.

109. The Court will order a re-trial.