Court of Criminal Appeal dismissed appeal on murder conviction, finding no error by trial judge regarding evidence admissibility.

THE COURT OF CRIMINAL APPEAL

CCA No. 292/09

Denham C.J.

de Valera J.

McGovern J.

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Liam Bolger (No. 2)

Applicant

Judgment of the Court delivered on the 23rd day of January, 2014, by Denham C.J.

A Statutory Court

1. The Court of Criminal Appeal is a creature of statute; from which it gets all its jurisdiction.

2. Originally, the Court of Criminal Appeal’s jurisdiction was set out in the Courts of Justice Act, 1924, which provided:-

“34. The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part,

and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order,

including any order as to costs as may be necessary for the purpose of doing justice in the case before the Court.”

3. The Court of Criminal Appeal was established by s. 3 of the Courts (Establishment and Constitution) Act, 1961. The jurisdiction of

the Court of Criminal Appeal was described in s. 12 of the Courts (Supplemental Provisions) Act,1961, as:-

“(i) The Court of Criminal Appeal shall be a superior court of record and shall, for the purpose of this Act and subject to

the enactments applied by section 48 of this Act, have full power to determine any questions necessary to be determined

for the purpose of doing justice in the case before it.”

4. There have been amending statutory provisions as to the Court of Criminal Appeal but the fundamental nature of the Court of

Criminal Appeal remains. As Hardiman J. stated in The People v. Francis Cunningham 2002 2 I.R. 712 :-

“It is trite but fundamental, to recall that the jurisdiction of the Court of Criminal Appeal is an ‘appellate’ jurisdiction.

Moreover, as was said in the case of The State (Woods) v. Attorney General [1969] I.R. 385, and elsewhere, the

jurisdiction is a statutory one: the Court is entirely a creature of statute and has no other jurisdiction.”

5. The Court of Criminal Appeal is thus an appellate court, created by statute. It is the ultimate appellate court for the most serious

criminal trials. It is not an appellate court which retries the defendant. It does not hold a re-hearing. It conducts an appeal by

reviewing the transcript of the trial court.

6. The decision of the Court of Criminal Appeal is final. However, s. 29 of the Courts of Justice Act, 1924 provided:-

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final, and no appeal shall lie from that court to the Supreme Court, unless that court or the [DPP] shall certify that the

decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an

appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the

decision of which shall be final and conclusive.”

7. Section 29 has been substituted by section 22 of the Criminal Justice Act, 2006. This provides:-

(1) No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or

other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the

decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the

prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of

law of exceptional public importance and that it is desirable in the public interest that the person should take an

appeal to the Supreme Court.

The fundamental structure of the Court of Criminal Appeal, being the final court of appeal, continues, subject to the s. 29 provision

for a limited form of appeal to the Supreme Court.

Case law

8. It is possible for a court to omit to determine an important issue raised on appeal. Over the last decade the Court of Criminal

Appeal has been requested to revisit a judgment on a number of occasions. In those cases the matter was simply brought back

before the Court of Criminal Appeal where the issue raised was considered.

9. In the case of DPP v Laide [2005] 1 I.R. 209, a supplementary judgment, DPP v Laide [2005] IECCA 85, was delivered by the Court

on the 29th June, 2005, having already handed down judgment on 24th February 2005. In the supplemental judgment, McCracken J

discusses the jurisdiction of the Court of Criminal Appeal to set aside its judgment. The Court, in its analysis, found that the principle

established by the Supreme Court in the case of Greendale Developments [2000] 2.I.R 514 applies equally to the Court of Criminal

Appeal. The Court stated:-

“In this regard the Court will adopt the passage from the judgment of Denham J in Re Greendale Developments Ltd (No. 3)

[2000] 2 IR 514 where she said at page 544:-

‘The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an

inherent duty to protect constitutional justice even in a case where there has been what appears to be a final

judgment and order. A very heavy onus rests on a person seeking to have such a jurisdiction exercised. It would

only be in the most exceptional circumstances that the Supreme Court would consider whether a final judgment or

order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be

reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.’

The Court considers that this principle applies equally to the Court of Criminal Appeal.”

In that case the Court of Criminal Appeal held that it could not possibly be said that there had been any breach of any constitutional

rights of the appellant. Thus, as the appellant had not brought himself within any of the recognisable grounds to seek to have the

matter revisited, the Court of Criminal Appeal did not entertain any further arguments as to the decision to direct a retrial.

10. In the case of the DPP v Gormley [2010] 2 I.R. 409, Finnegan J. delivered the judgment of the Court on the 27th July 2009. On

the 4th March 2010, the Court handed down another judgment, DPP v Gormley [2010] IECCA 22, which just dealt with a point not

addressed in the first judgment delivered on the 27th July, 2009.

11. In the case of DPP v D.O’S (Unreported, Court of Criminal Appeal, 27th May, 2004) the Court of Appeal delivered a judgment on

the 27th May, 2004. However, on the 28th July, 2004, that Court (McGuinness J.) delivered a second judgment, DPP v D.O’S [2004]

IECCA 23, which extended and amended the first judgment. The judgment of the 28th July, 2004, inserted and addressed two matters

additional to those addressed in the first judgment of the Court.

12. The issue of revisiting a judgment of the Court of Appeal was addressed also in the ex tempore judgment of the Court of Criminal

Appeal (McKechnie, de Valera, McGovern JJ.) in The People (at the suit of the Director of Public Prosecutions v. Timmons, [2013]

IECCA 86, delivered on the 14th January, 2013. Delivering the judgment of the Court, McKechnie J. stated:-

“39. On the question of finality there is no doubt but that there has been a practice in this Court for some time – a

practice with which we entirely agree – that where an appeal raises both conviction and sentence issues, the latter

aspect of the appeal is frequently stood aside until such time as the Court rules on the conviction point. This is not

always done, but where a separation of grounds is convenient and saves time it is beneficial to both parties to do

so. Sometimes, such a course is suggested by either the prosecution or the defence and whilst the Court is itself

free to impose this option, it generally will seek the parties’ consent before so doing. That is what happened in this

case. Consequently, Mr. Timmons moved his conviction appeal, concentrating solely on challenging the finding of

guilt. He did so through fourteen grounds of appeal. The Court, having considered each of these grounds, came to

the conclusion that none were sustainable. It did so by reference to the law as it was understood to apply and as it

was applied at that time. This occurred in April, 2011. It is therefore quite surprising to find the appellant now

arguing that this aspect of his appeal is still alive and that it can be re-opened and reviewed, by reference to

circumstances occurring almost one year later.

40. No authority has been opened to this Court in support of such a submission and we doubt very much that any

exists. As stated, the issue of guilt has been determined, not only at first instance by the trial court and the jury,

but also on appeal. Apart from a potential application under s. 29 of the Courts of Justice Act 1924, as amended,

that is the end of a convicted person’s legal right of access to the court to have the issue of his/her guilt

determined. Consequently, at the level of principle, we are satisfied that the decision given in April, 2011 was final

in every sense and certainly final as technically understood in the face of a subsequent application to re-open the

matter.

41. Staying at the level of principle, the situation might be looked at from a slightly different perspective by asking

whether in the absence of Damache, it would have been possible for the appellant during the hearing of his

sentence appeal, to ask this Court to revisit the conviction judgment, or for that matter, could the D.P.P. make a

similar request? The answer, quite unequivocally, would be no.

42. There are however other reasons why the same conclusion must be reached. The first is the clear statutory

wording of the opening portion of s. 29 of the Courts of Justice Act 1924 which reads:

‘The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to

determine shall be final …’.

It has not been suggested, nor could it be, that the word ‘final’ in this provision could have any meaning other than

what it conveys; namely that the determination given is conclusive of all the matters so determined.

43. In addition, reference can also be made to Pringle v. Ireland & Anor. [1994] 1 I.L.R.M. 467, where Murphy J. at

p. 473 considered that the word ‘final’, as it applied inter alia to the Court of Criminal Appeal, put the relevant

decision of that Court ‘beyond review by any other judicial body’. Hardiman J. in Cunningham said much the same,

adding at p. 416 that:

‘The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and

the Court of Criminal Appeal, both primarily appellate courts. … It therefore appears that where there is

… a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is

subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken

within the time limit for doing so.’

Consequently this Court is entirely satisfied that the conviction appeal of Mr. Timmons has been finally and

conclusively determined by this Court in its judgment of April, 2011 and consequently, that at no time thereafter

was there ever a live or extant appeal on that issue.

44. In such circumstances, and applying what the Supreme Court said in A., as well as the various decisions of this

Court in Cunningham, Kavanagh, Hughes and O’Brien, we are satisfied that the present application is unsustainable

and must be refused.”

Conviction and Sentence

13. Now, in relation to this application, Liam Bolger, the applicant, referred to as “the applicant” was convicted of the offence of

murder at the Central Criminal Court (Carney J.) on the 17th November, 2009. On conviction he was sentenced to life imprisonment,

the sentence to run from the 13th September, 2008.

14. The trial lasted for ten days before Carney J, and the conviction was on a majority verdict of 10 to 2.

15. The jury found that although the applicant was not the assassin who shot the victim, he shared equal responsibility. It was a joint

enterprise, as he drove the gunman away in a white Renault van. The deceased victim was shot nine times at Byrnes Bookmakers,

Killester Avenue, Donnycarney, Dublin. After the gunman left the bookmaker shop, he got on a motorbike, travelled a short distance,

then burnt the motorbike, and ran to the van which the applicant was driving.

16. The Central Criminal Court refused leave to appeal.

Application for Leave to Appeal

17. The applicant filed a notice of application for leave to appeal, setting out the following grounds of application:-

“(i) The Learned Trial Judge erred in law in circumstances where he found the applicant to have been unlawfully detained

by Garda Ronan Clogher and subsequently arrested at a time when he was unlawfully detained and accordingly the fruits

of that arrest ought to have been excluded from the evidence.

(ii) The Learned Trial Judge erred in law and in fact in permitting the admission into evidence of photographic stills of an

unidentified white van at various locations in Dublin.

(iii) The Learned Trial Judge erred in law and in fact in allowing the admission into evidence of an interview with the

Applicant whilst in Garda custody, in which interview sections 18 and 19 of the Criminal Justice Act, 1984 as substituted

by sections 28 and 29 of the Criminal Justice Act 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by

section 30 of the Criminal Justice Act, 2007, were invoked.

(iv) The learned Trial Judge erred in refusing an application for a direction at the conclusion of the prosecution case.

(v) The Learned Trial Judge erred in law and in fact in the manner in which the jury were re-directed when requested by

them on the issue of inferences to be drawn under sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by

sections 28 and 29 of the Criminal Justice Act, 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by

section 30 of the Criminal Justice Act, 2007.

(vi) The Learned Trial Judge erred in law and in fact in re-charging the jury on the issue of the consequences of the

Applicant's original solicitors’ advice in respect of inferences to be drawn thereto.

(vii) The trial was unsatisfactory by reason of the reliance, by the prosecution, upon phone records which sought to

demonstrate the presence of the Applicant in the vicinity of the murder of Mr. Christopher Barry, as evidence from which

adverse inferences could be drawn of an agreement by the Applicant to a criminal joint enterprise, namely the murder of

Mr. Christopher Barry when such evidence, taken at its highest, demonstrated nothing more than mere presence at a

particular place.

(viii) The trial was unsatisfactory by reason of the reliance by the prosecution upon video surveillance evidence of an

unidentified motorbike and rider travelling through certain locations in Dublin and similar evidence of an unidentified white

van travelling through certain locations, in Dublin, as evidence from which adverse inferences could be drawn of an

agreement by the Applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence

neither identified the Accused nor any other person as being responsible for the movements of either the said motorbike

or van.”

These grounds were set out in the judgment of the Court of the 14th March, 2013.

18. The application for leave to appeal was heard by this Court on the 28th January, 2013. The applicant was represented by Michael

O’Higgins S.C. and Tony McGillicuddy B.L. This was a change in counsel from the trial when Brendan Grehan S.C. and Paul Comiskey

O’Keeffe B.L. represented the applicant. Counsel for the prosecution at the trial and on the appeal were Patrick McCarthy S.C. and

Roisin Lacey B.L.

19. Written submissions were before the Court, filed on behalf of the applicant and on behalf of the DPP. The written submissions (47

pages) filed on behalf of the applicant raised a series of issues being: the Damache issue (paragraphs 7 – 37); ground 1:

consequences arising from the applicant’s unlawful arrest on the 13th September, 2008 (paragraphs 38 – 61); grounds 3, 5 and 6: the

learned trial judge’s charge and re-charge on inferences from silence during the applicant’s interview (paragraphs 62 – 105); ground 2:

admission of CCTV footage and photographic still evidence of an unidentified white van and motorbike at various locations in Dublin

(paragraphs 106 – 129); grounds 7 and 8: trial unsatisfactory by reason of the reliance on evidence of the applicant’s phone records

and the CCTV evidence to show an agreement by the applicant to act in a joint enterprise for the murder of Mr. Barry when the

aforesaid evidence could not be probative of such matters (paragraphs 130 to 133); ground 4: failure to grant a direction at the

conclusion of the prosecution case (paragraphs 134 – 135).

20. After hearing counsel, the Court reserved judgment, and judgment was delivered on the 14th March, 2013, [2013] IECCA 6. The

Court refused the application for leave to appeal, concluding:-

“57. The Court has considered carefully the oral and written submissions made by the parties in the case. The Court has

also reverted to the general rule, set out in paragraph 32(vii), that an applicant may not raise on an appeal new issues

not determined at a trial, however, as stated in The People (Director of Public Prosecutions) v. Cronin No. 2 [2006] IESC

9, [2006] 4 I.R. 329 at 339 and 346, the Court could intervene, which in this case would be to allow the Damache

decision to be argued, if it were of the view that a fundamental injustice had been done or there was a reasonably

explained substantial error leading to an apprehension of real injustice. Having heard the submissions on the grounds of

the appeal, the Court is satisfied that this is not a case where the issue of a fundamental injustice arises or that there

was a reasonably explained substantial error leading to an apprehension of real injustice. Rather, it is a case where the

Court is satisfied that there was no error by the learned trial judge.”

Motion

21. Counsel on behalf of the applicant has filed a notice of motion which states that it seeks:-

(i) An order setting aside the judgment of this Court delivered on the 14th March, 2013,

(ii) Further and/or in the alternative an order providing for the re-hearing of the applicant’s appeal before the Court,

(iii) If necessary, an order for the provision of the DAR/electronic recording of the proceedings before the Court on the

28th January, 2013, concerning the applicant’s case,

(iv) Further or other order,

(v) If necessary legal aid in respect of this application.

22. Such a motion is a fundamental misunderstanding of the jurisdiction of the Court of Criminal Appeal. The Court has heard the

appeal argued on behalf of the appellant and reached a determination, which is final.

23. The Court does not have jurisdiction to set aside the judgment of the 14th March, 2013, which is final, it is the conclusion of the

application for leave to appeal.

Justice

24. The Court has jurisdiction to ensure that justice is done in a case. As an abundance of caution, the Court in exercise of that

jurisdiction, decided to hear counsel, which it did on the 28th November, 2013.

25. In essence, counsel for the applicant submitted that matters of appeal raised, especially grounds no. 5, 6 and 3, were not

addressed; that the judgment does not contain any reference concerning the learned trial judge’s charge and re-charge to the jury,

on inferences from silence, and the issues and submissions made in respect of grounds no. 5 and 6. Further, counsel for the applicant

submitted that he wished to focus on whether the applicant should have been cautioned in a specific manner.

Discussion

26. These issues, specifically the charge and re-charge of the learned trial judge and the matter of the caution, were opened and

discussed before the Court on the 28th January, 2013.

27. In paragraph 8 of the judgment of this Court on the 14th March, 2013, the five issues before the Court were stated. The third

issue listed was:-

“(iii) The inference from silence issue. Counsel submitted that the learned trial judge erred in relation to his charge and re-

charge to the jury on the issue of drawing inferences from the applicant’s silence during interviews and questions put to

him under s. 18, 19 19A of the Criminal Justice Act, 1984, as, respectively, substituted by s. 28 and s. 29 and inserted by

s. 30 of the Criminal Justice Act, 2007.”

28. On the 26th November, 2013, counsel for the applicant referred to an affidavit of Michael McVerry, Solicitor, of Tiernans,

Solicitors, 15 Church Street, Dundalk, Co. Louth, and also of 7 St. Colman’s Park, Newry, Co. Down, who stated that he had carriage

of the appellant’s file in the proceedings.

29. Counsel indicated that he wished to raise two broad matters with the Court. First, ground no. 3 of the notice of application for

leave to appeal; and secondly, grounds no. 5 and 6 of the said notice.

30. These grounds relate to aspects of the issue of inferences, which were with the Court on the 28th January, 2013, and again on

the 26th November, 2013. The Court at all times has been conscious of the importance of the issue, and of the relevant interview,

and it was considered in its judgment.

31. Ground no. 3 of the notice of application for leave to appeal was:-

“3. The Learned Trial Judge erred in law and in fact in allowing the admission into evidence of an interview with the

Applicant whilst in Garda custody, in which interview sections 18 and 19 of the Criminal Justice Act, 1984 as substituted

by sections 28 and 29 of the Criminal Justice Act 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by

section 30 of the Criminal Justice Act 2007.”

32. At the core of this ground of appeal, and the grounds of appeal concerning “inferences”, is the question of the admissibility of the

evidence. The Court has expressed its clear view that the evidence was admissible, thus addressing the core issue under ground no.

3. 33. Aspects of grounds raised were not all subject to exposition. It is not necessary in a judgment to determine each and every

ground, and aspects of each and every ground raised.

34. On the 28th January, 2013, counsel for the applicant indicated that with the exception of the inferences issue that the

applicant’s case was in the written submissions, but that he would add to the written submissions on the inferences issue, which he

did. There was an objection to the admission of the accused not answering questions, and inferences from the applicant’s silence,

during interviews and questions put to him under ss. 18, 19 and 19A of the Criminal Justice Act, 1984, as, respectively, substituted by

s. 28 and s. 29 and inserted by s. 30 of the Criminal Justice Act, 2007. It was stated that the gravamen of the objection was that

the garda had not explained the nature of the provisions.

35. On the 26th November, 2013, it was submitted that the applicant had been arrested and detained for possession of a firearm. The

firearm was connected to the murder for which he was ultimately charged. While the Gardaí raised many questions as to the firearm,

they were interested in the murder.

36. Counsel stated that he was not saying that the Gardaí could not do that. He accepted that the questions captured legitimate

issues other than the firearms matter.

37. When this matter was argued on the 28th January, 2013, counsel took grounds 3, 5 and 6 together. This was logical as they

related to the inferences issue. It followed from that that the Court also considered the inferences aspect of the application for leave

to appeal together.

38. The relevant statutory provisions were set out in the judgment of the 14th March, 2013.

39. Some details from the transcript of the 12th November, 2009, (Day 7), evidence of Detective Garda Brian Hanley p. 22, line 33 to

p. 25, line 11, was set out. For ease of reference it is set out again in this judgment.

“Q. And then you stated : ‘We are continuing investigating the offence for which you were originally arrested for;

that is , unlawful possession of firearms on the 13th of September 2008 at Killester Avenue’ and the questions are

being asked by Robert Comerford, and I will put in a question – where his initial is RC are.

‘Question: You [the applicant] have been given an opportunity to consult with your solicitor; is this correct?

Answer: Yes.

Question: Has he advised you in relation to section 28, 29, 30 of the Criminal Justice Act 2007?

Answer: Yes.

Question: Brian is now going to read sections 28, 29, 30 of the Criminal Justice Act, he will explain them also in

layman's terms; okay?

Answer: Yeah.’

And thereafter you [Detective Garda Hanley] read out section 28 of the Criminal Justice Act 2007, and you explain

in it layman's terms what that section means; is that correct?

A. That is correct, my lord.

Q. And then you ask a question:

‘Do you understand what I have said about this section?

Answer: Yes.

Question: Your solicitor has already explained these sections?’

And then you [Detective Garda Hanley] go on to explain section 28; is that correct?

A. That is correct, my lord.

Q. And Robert Comerford then asks the question:

‘Are you [the applicant] happy enough about section 28?

Answer: Yes:

Question: In accordance to this, I want to ask you about your Renault Kangoo van registration No. 03 MH 3275.

How long have you had this van?

Answer: About six months.

Question: Where did you go to in this van last Saturday when you left the Cuckoo's Nest?

Answer: This is a very serious case and I have been advised by my solicitor not to say anything in case I get into

trouble.’

I think then you [Detective Garda Hanley] asked the prisoner to sign section 28 of the Criminal Justice Act; is that

correct?

A. That is correct, my lord.

Q. ‘Answer: This is a very case and I don't want to put my initials to any documents, please, thank you. My solicitor

has advised me to say “no comment”.

Question: Did you loan that van to anyone?

Answer: I have been advised to say “no comment”; I don't mean to be rude.

Question: It is our brief this van was used in the murder of Christopher Barry last Saturday, where he was shot a

number of times with a firearm, and you are being asked to account for this van last Saturday between 1.40 p.m.

and 4 p.m.?

Answer: I have been advised at this time this is my best interest to say “no comment”. I don't mean to be rude.

Question: You understand that inferences may be drawn for your refusal to account for this Renault Kangoo van?

Answer: Yes.

Question: I believe you drove this van to Killester last Saturday and you are heavily involved in the murder of

Christopher Barry. Are you refusing to account for your Renault van last Saturday the 13th of September?

Answer: At this stage it is my best interest to say “no comment”.

Question: What about Christopher Barry's interest?

Answer: I thought that at the start I was going to be asked about sections 28, 29 and 30.’

Detective Garda Comerford explains why questions about the case are being put to the prisoner.

‘Question: Are you [the applicant] satisfied about the way I have explained?

Answer: It is hard to take it all in to my best in my head, I'm trying to remember everything.

Question: So you do understand?

Answer: Yes.

Question: Your Renault Kangoo van was observed by a witness in the immediate vicinity of Byrnes Bookmakers,

Killester, at approximately 3 pm last Saturday. You have been asked to account for this van in Killester last

Saturday?

Answer: At this stage in the investigation, I have been advised to say “no comment”.

Question: Is it okay if I put “no comment”?

Answer: You answer the questions in any way you want to.’

If I repeat that. Oh, sorry, you are saying it is your answer?

A. Yes. Detective Garda Comerford said ‘Is it okay if I put no comment to this’, and I [Detective Garda Hanley] just

said to Liam Bolger to answer the questions in any way he wanted to.

Q. And Mr Bolger answered ‘yes’ to that.

‘Question: Also under section 28, I want to question you [the applicant] in relation to the damage to your Kangoo

van, 03 MH 3275. You have viewed CCTV footage of the Cuckoo's Nest last Saturday where it is visible that there is

no damage to the door of the van. You have now been asked to account for the damage to your van?

Answer: No comment.

Question: Why did you lie to the guards when you said this damage happened prior to last Saturday?

Answer: No comment.

Question: You viewed the footage for time approximately 1.40 at the Cuckoo's Nest and there was no damage. And

when you were stopped by the gardai at 4.30 pm there was damage. How did this damage happen? ,

Answer: No comment.

Question: You do understand that refusing to answer questions about the damage to the van is a failure or refusal?

Answer: At this stage I have been advised to say “no comment”.’”

This extract from the transcript illustrates the approach taken by the applicant at the interview.

40. This Court has held that the learned trial judge did not fall into error when stating on the 12th November, 2009 (Day 7) at p. 20,

lines 9 to 27:-

“He was -- now, it was explained to him that inferences might be drawn and it was indicated to him that he was satisfied

about the manner in which this had been explained, and that he understood the situation. We had this over and over

again, that the -- at least half a dozen times or thereabouts -- that the situation was explained to him and he

understood it, and we saw all this on the video. And that gave me some initial concerns, because in the guard's

explanation there was a lot of legal mumbo jumbo being given in explanation of other legal mumbo jumbo, and it is hard in

the circumstances we are concerned with here to get away with -- to get away without that. But what did come across

on the tape was that the accused was not a man who came in determined to find a spot on the wall and stare at it for

the course of his detention and say nothing. He was a very, creditably -- and remarkably creditably -- a person who

engaged with the guards and was manifestly seeking to understand the situation, and I am satisfied to the standard of

beyond reasonable doubt that, taking account of what he had said in relation to his legal advice, in taking account of

what was said to him by the guards, taking account of the questions he put to the guards and the manner in which he

engaged with the solicitor and then contributed to the process, that he did understand the situation, that it was proper

explained to him, and I am satisfied the statutory provisions may be operated in this case.”

41. This Court was satisfied that the trial judge applied the standard of proof beyond reasonable doubt in ruling to admit the

memorandum of interview, so that the jury could be invited to draw inferences from the applicant’s silences.

42. This Court was satisfied that: (a) the applicant was advised by the gardaí that they intended to invoke the statutory provisions;

(b) the applicant consulted with his solicitor; (c) the gardaí explained the sections of the statute to him in layman’s language; (d) the

applicant indicated that he understood the caution; (e) the applicant engaged with the gardaí; and (f) this was recorded on

videotape, and that the evidence was properly admitted.

43. While the decision of this Court on the admissibility of the evidence determined the fundamental “inferences” issue, the Court

takes this opportunity to expressly confirm its view as to the issues of the caution, charge and re-charge aspect.

Caution

44. There was no specific ground in the application for leave to appeal which expressly referred to the issue of the caution. However,

it was addressed in the written submissions in paragraphs 71 to 81, and was opened in oral argument, when the Court was brought to

and considered relevant parts of the transcript.

45. During the hearing of this appeal, which is a review of the transcript, the Court was brought explicitly to the submissions of

counsel on Day 7, the 12th November, 2009. On that date Mr. Grehan submitted at p.14:-

“MR GREHAN: The Court I think handed in a copy of the sections to the Court which I know the Court will be familiar with,

although it is a relatively new provision and I don't know if it has been operated yet - -

JUDGE: No.

MR GREHAN: -- before this Court. It represents obviously a sea change from the common law position and an accused's

privilege against self-incrimination, and indeed, right to silence; and obviously as such a provision, it has to be strictly

construed, and I would just make the following submissions in respect of the matter. First of all, it is apparent -- referring

-- I'm referring to section 28 – that section 18(1) is now inserted into the 1984 Act. It refers obviously to an arrestable

offence -- and I accept that this murder is an arrestable offence and that the proceedings are in respect of murder --

that at any time before he or she was charged with the offence on being questioned by a member of An Garda Siochana

in relation to the offence, and I just make a submission to the Court on that point to state that the accused in this case

was arrested for unlawful possession of firearms at Killester, and that was the offence that he was arrested and detained

on and had his detention extended on twice while he was in custody, and it is in the latter number of hours prior to the

expiry of the 72-hour period of detention that this section is invoked. And in my submission the references to the offence

in section 18(l) obviously have to refer to the murder charge on which the accused is now before the Court and not the

possession -- unlawful possession of firearm offences, and therefore in my submission the Court should not permit the

entry of the inferences in circumstances where he was being questioned in relation to unlawful possession of firearms and

not in relation to the murder, per se. And that's as far as I've put the matter, but I say the section has to be strictly

construed and that is the natural result of it.

[…]

JUDGE: It was impressive the way your client was joining in the debate and seeking to comprehend.

MR GREHAN: Yes, I fully appreciate that but, in my submission, the Act is clear in its terms, and I am referring to

subsection 2 -- or, sorry, subsection 3A – ‘the subsection 1 to not have effect unless the accused was told in ordinary

language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to

account for a matter to which that subsection applies might be...’ -- obviously I take no issue with the second part that

he was afforded an opportunity to consult with a solicitor. So, in my submission, it is not so much the accused' reaction,

but the onus that is on the prosecution, and in this case the interviewing gardai, to explain in ordinary language the

consequences or the effect, as it is called, of failure to account. So, those are my submissions in respect of the matter,

and in those circumstances I'm submitting the Court ought not to permit this particular evidence in this particular

interview to be given to the jury.”

[Transcript 12 November 2009 (Day 7) p. 14 line 22 to p.17 line 15]

46. Mr. McCarthy S.C. addressed the learned trial judge as follows:-

“MR McCARTHY: Sorry. To invoke the sections, my lord, there must be an arrestable offence. The charge with which he

was brought in is an arrestable offence. So, in those circumstances, refusal to answer, he can be put on notice that he is

going to be questioned under section 28, 29 and 30, provided certain statutory requirements are complied with, they can

ask. And a refusal to answer enables the Court to draw inferences, provided there is other evidence available that it

might amount to corroboration of that evidence. So, when you are looking at what they had to do, it was on video, which

makes the criteria. He was informed in the previous interview that they intended to invoke it in the following interview in

which we watched on the video, and he had a full consultation with his solicitor. So, all the criteria for invoking the

section have been applied, including the arrestable offence. There is nothing strange about a person being brought in for

an arrestable offence and the offence being more serious when it came to the trial itself. That's a normal investigative --

that might come from the investigation and the consequences arising from the initial offence that he was arrested for.

But more importantly, the obligation is on the gardai to ensure that it was understood in layman's terms, but what we

have seen on the video was that the accused person engaging -- positively engaging, in the process of understanding

with the gardai, and was -- Mr Grehan has pointed to no particular where there was a lack of explanation. And that's

what he would have to show in order for it to say that the accused couldn't understand it, in circumstances where the

accused himself on the video says he understood what was going on. He doesn't point to any particular absence or

difficulty of understanding in the explanation given by the gardai to affect 28 and 29 and 30. So, in my submission, my

lord, that all the criteria has been applied that ought to be applied; it was explained -- all the statutory requirements

were complied with, and the statute itself was read over to him and it was explained to him in layman's language. In those

circumstances, it seems to me the inferences, if there is other evidence available which can be corroborative, it can be

submitted to the jury and it may be a question of what inferences can be drawn from that. In these circumstances, there

is already evidence in the case of the car being at Killester Avenue, supported- by Mr Drew; an hour and a quarter later

at Tallaght, the car is seen in the possession of Mr Bolger and Mr Ward. The absence -- this clearly calls for an

explanation from the accused person, having regard to the terms of the section.

That's my submission.

Sorry, my lord, the fact that there is a double caution in the matter, there is no regulations, that I'm aware of, that are

brought in. So we are dealing with the section itself. If you are cautioned initially in the ordinary caution in accordance

with the Judge's Rules, clearly has the right to silence imported into it. But he is already on notice, my lord, from the

previous interview and being informed by solicitor, that there are going to invoke section 28, 29 and 30. There is nothing

in conflict, because he always had the right to silence, and invoking the statutory basis for section 28 and 29 overrules

that, and he is informed that they are in fact invoking that in the Act.

Those are my submissions.”

[emphasis added]

[Transcript 12 November 2009 (Day 7) p. 18 line 21 to p.18 line 31]

47. In reply Mr. Grehan said:-

“MR GREHAN: Just very briefly respond. Mr McCarthy's first point is he says that charge he was brought in on was an

arrestable offence. I don't dispute that at all, but what the section is concerned with is proceedings against a person for

an arrestable offence, and then it goes on to refer to that offence, so it can only be the offence which is before the

Court, not that in which they are arrested for. And in my submission, that's where he has a difficulty, if I can put it that

way. The second point is, he suggested I haven't pointed to any absence of understanding, but that is to turn the

requirement of subsection 3 on its head, because subsection 3 makes clear that the section cannot be admitted -- it puts

the entire onus on the interviewing members for the Court or tribunal to be satisfied that they have done their job rather

than whether the accused has understood or not, at the end of the day. And the final matter in respect of the caution; it

is extraordinary if the legislature contemplated a section where the ordinary words of the caution would be withdrawn and

a new one

supplemented. As I would say, you have to, to be consistent in respect of this

section, so that you are not on the one hand telling somebody you are not obliged to say anything and on the other hand

suggesting that you are.”

[Transcript 12 November 2009 (Day 7) p. 18 line 32 to p. 19 line 13]

[emphasis added]

48. The learned trial judge ruled as follows:-

“JUDGE: Very good. This is by no means without difficulty. So far as the caution is concerned, section 32 provides for the

making of regulations which have not been made. In the circumstances we have to proceed as best we can with the

existing infrastructure. So far as the arrestable offence is concerned, I accept Mr McCarthy's submissions in that regard.”

[Transcript 12 November 2009 (Day 7) p. 18 lines 14 to 18]

49. In his charge to the jury, Carney J. stated:-

“And subsection 1 shall not have effect unless the accused was told, in ordinary language, when being questioned,

charged or informed what the effect of the failure or refusal to account for a matter to which the subsection applies

might be, and the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal

occurred. And the section doesn’t apply unless the question –the questioning was recorded by electronic or similar means,

or the person consented in writing to it not being recorded.”

[Transcript 13 November 2009 (Day 8) p.9 lines 17 to 25]

50. In re-charging the jury, Carney J. stated:-

“Now [s. 28 of the Criminal Justice Act 2007] doesn’t apply unless the accused was told in ordinary language, when being

questioned, charged or informed, what the effect of a failure or refusal to account for the matter to which the sub-

section applies might be. And the accused was afforded a reasonable opportunity to consult a solicitor before such failure

or refusal occurred”

[Transcript 16 November 2009 (Day 9) p.9 lines 18 to 22]

51. In this case counsel submitted that at the beginning of the interview a standard caution was given. As the learned trial judge

stated, while s. 32 of the Criminal Justice Act, 2007 envisaged a new caution format, no such regulation had been made. In all the

circumstances of the case, the Court was and is of the view that there was no error by the learned trial judge on this aspect of the

inferences argument.

52. The nature of a caution is important in fact and in law. As the law develops the nature of a caution will develop also. This

development in law may be by way of legislation or case law.

53. In this appeal the facts and circumstances and the rulings of the learned trial judge on the issues raised during the trial by

counsel are reviewed by the Court.

54. The Court was brought through the transcripts by counsel on the 28th January, 2013, and found no error by the learned trial

judge in all the circumstances of the case. The Court remains satisfied that in the context of the trial in this case and the findings of

fact and the circumstances there was no error in law by the learned trial judge. The trial Court considered and accepted the

submissions made by counsel for the DPP on the issue of the caution. This Court finds no error of law by the learned trial judge in that

decision.

Nuance

55. Mr. O’Higgins S.C. for the applicant on the 28th January, 2013, took a “more nuanced” approach than in the written submissions.

He submitted, inter alia, that the fact that the applicant was charged with a different offence does not mean that the inferences

provision does not automatically apply. The question he raised was whether it was explained to him clearly that his remaining silence

could affect not only the offence for which he was arrested, but also for any arrestable offence.

56. On the 26th November, 2013, Mr. O’Higgins S.C. for the applicant, submitted that Mr. Grehan S.C. had honed in on the dichotomy

of the arrestable offence and the offence. He stated that he made a different argument, and that he made a different analysis of the

statutes.

57. This issue and case illustrates the situation which may arise when the counsel at the trial are different to the counsel at the

application for leave to appeal who are seeking a different approach.

58. This aspect of the issue of inferences was before the Court, and considered by the Court on the 28th January, 2013. The

transcript of the trial court was opened to the Court. It was accepted that the Gardaí could question the applicant on the alleged

murder. The findings of the trial judge arose out of the particular facts and circumstances and the submissions of counsel in the

context of the trial.

59. The Court reviewed the transcript and the legal submissions to the trial court, and the determinations of the trial judge. These are

the parameters of an appeal to the Court of Criminal Appeal. As an exercise to ensure that justice is done, the Court has again

reviewed these findings of the learned trial judge and finds no error in all the circumstances.

Charge and Re-charge

60. Counsel referred the Court specifically to grounds no. 5 and 6, the learned trial judge’s charge and re-charge to the jury on the

28th January, 2013, and on the 26th November, 2013. The grounds of application for leave to appeal were:-

(5) The learned trial judge erred in law and in fact in the manner in which the jury was re-directed when requested

by them on the issue of inferences to be drawn under sections 18 and 19 of the Criminal Justice Act, 1984 as

substituted by section 28 and 29 of the Criminal Justice Act, 2007, and section 19A of the Criminal Justice Act,

1984, as inserted by section 30 of the Criminal Justice Act, 2007.

(6) The learned trial judge erred in law and in fact in re-charging the jury on the issue of the consequences of the

Applicant’s original solicitor’s advice in respect of inferences to be drawn thereto.

61. The charge by the learned trial judge was opened at length and in great detail to the Court in January, 2013, especially in relation

to the aspect on the inferences. The Court’s attention was also brought to the requisitions in relation to the charge. On the issue of

inferences Mr. Grehan had asked the trial judge:-

“The third matter that I'd ask the Court to re-direct the jury on is the -- on the question of inferences which are crucial

on the facts of this particular case, I would ask the Court to give the instruction approved by the Court of Criminal Appeal

in the DPP v Cronin [2003] 3 IR at page 389, and I can hand in a copy to the Court with the relevant passage marked.

‘The accused is entitled to have the inferences most favourable to him drawn, unless it has been excluded by the

prosecution beyond reasonable doubt. This is unaffected by the fact that a jury may consider it the most favourable

inference much the less likely of those –

JUDGE: What pages is this?

MR GREHAN: It's page 289 and on to 390 of the People v Cronin, and I can hand in … At 389 it's the last sentence of the

paragraph that begins at the bottom of the page, ‘There is no doubt on the basis of the two cases cited -- ’

[ Transcript 16 November 2009 (Day 9) p. 2 lines 16 to 27]

62. The learned trial judge then re-charged the jury as follows:-

“Now, in relation to the question of inferences, which you heard a good deal about in this case, I'm asked to bring your

attention to something the Court of Criminal Appeal has said in relation to that. Giving judgment in a case called Cronin,

Mr Justice Hardiman said, ‘There is no doubt on the basis of the true case as just cited, that it is an inadequate

statement of the law to say that the inference most favourable to the accused is to be drawn only where there are two

or more conclusions, which with equal plausibility can be drawn from a particular set of facts. The accused is entitled to

have the inference most favourable to him drawn, unless it has been excluded by the prosecution beyond reasonable

doubt. This is unaffected by the fact that the jury may consider the more favourable inference much the less likely of

those available. It is of course true that where there are two conclusions of equal plausibility, the accused is entitled to

have the one most favourable to him drawn, but this is not the whole story. He continues to have this entitlement, even

if the favourable inference is relatively unlikely, unless it has been excluded beyond reasonable doubt.’”

[ Transcript 16 November 2009 (Day 9) p. 5 lines 9 to 23]

63. The foreman of the jury sought some clarification from the learned trial judge, who replied:-

“FOREMAN: Your honour, may it please the Court. We would like to have some clarification from you under the 2007 Act,

and firstly, if it pleases the Court, we would like you to repeat the guidance that you gave us when we broke up, and

secondly, which really is the point in question I suppose, is we are looking for guidance on what weight do we put on the

inferences that can be drawn under the 2007 Act, relating to the defendant's decision as advised by his solicitor not to

answer questions in relation to material facts and key questions that were put to him.

64. The learned trial judge stated:-

JUDGE: Now, as you know, the facts are for you, the law is for me. I pursue a

policy of not getting involved myself in the facts. I don't want to be in a position where I state something as a fact, but

it's for you to find whether something is a fact or not. So, now I'll try and give you the legal framework, but I keep out of

facts, they're your area of the case.

Section 28 of the 2007 Act provided, ‘Where in any proceedings against a. person for an arrestable offence...’ -- we're all

agreed we're dealing with an arrestable offence, there's no question about murder being an arrestable offence –

‘...evidence is given that the accused a) at any time before he or she was charged with the offence, on being questioned

by a member of the Garda Siochana in relation to the offence, or b) when being charged with the offence or informed by

a member of the Garda Siochana that he or she may be prosecuted for it, was requested by the member to account for

any object, substance or mark, or any mark on any such object which was (1) on his or her person, (2) in or on his or her

clothing or footwear, (3) otherwise in his or her possession, or (4) in any place which he or she was, during any specified

period, and which the member reasonably believes may be attributable to the participation of the accused in the

commission of the offence, and the member informed the accused that he or she so believes and the accused failed or

refused to give an account, being an account which in the circumstances at the time clearly called for an explanation

from him or her when so questioned, charged or informed. The jury in determining whether the accused is guilty of the

offence charged, or any other offence of which he or she could lawfully be convicted on that charge, may draw such

inferences from the failure or refusal as appear proper, and the failure or refusal may, on the basis of such inferences, be

treated as, or capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is

material’.

So, first of all, you have the guard invoking the section, you have a situation which at the time clearly calls for an

explanation from a person when questioned. And it's a matter for you not for me what calls for an explanation. And the

jury then may draw such inferences from the failure or refusal as appear proper. Now, appear proper to you, not to me,

you're the judges of fact, so it's what appears to you proper in the circumstances prevailing. And the failure or refusal

may, on the basis of such inferences, be treated as capable of amounting to corroboration of any evidence in relation to

which the failure or refusal is material. Corroboration is something which confirms the case and the statute as properly

applying, allows you to treat a failure of the kind described to amount to confirmation, in relation to evidence in which the

failure or refusal is material.

So, now that is -- that is the legal framework, and it's for me to give you the legal framework, it's for you to find the

facts and it's matters of weight are matters for you, you have to decide what weight is to be given to the evidence.

Now, the section doesn't apply unless the accused was told in ordinary language, when being questioned, charged or

informed, what the effect of a failure or refusal to account for the matter to which the sub-section applies might be. And

the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

Now, the accused has a right to consult a solicitor, he's a right to be advised by the solicitor, it's up to that solicitor to

get the advice he gives right. All we know is the answers which were given by the accused, we don't know what the

advice was, but you might think that advice to say ‘no comment’ under all circumstances - no matter what opinions the

guards had been formed and put to the accused, and no matter what the evidence was, and no matter what the

circumstances were - would not be good advice. Now, we don't know what the solicitor said, it's up to him to give good

advice and correct advice.

And the jury shall, for the purpose of drawing an inference under this section, have regard to whenever, if appropriate,

the account of the matter concerned was first given by the accused, and the matter must be recorded by electronic or

similar means, or the person must have consented if it’s not so recorded.

MR GREHAN: I think the Court may have unintentionally skipped sub-section 2, which may be of relevance.

JUDGE: Yes, that provides, ‘ person shall not be convicted of an offence solely or mainly on an inference drawn from a

failure or refusal to account for a matter to which sub-section 1 advised.’And . . . , I gave you some dicta from other

jurisdictions which suggested you use the inference material as supportive, or reinforcing a case you've already found.

Now, section 29 deals with inferences for the failure of refusal to account for the accused presence at a particular place,

and that's in broadly similar terms, and I don't think I need go through that again. Does that help you in any way, Mr

Foreman?

FOREMAN: I think it does, your honour, and in section 30 is the similar - - the same principles to which -- apply to that,

would they? I think there were three sections - -

JUDGE: There were three sections mentioned, I wasn't sure how relevant the third was. Yes, it's inference and failure of

accused to mention particular facts, I think that is in similar terms.

Now, you have now deliberated for such. a period of time that I'm prepared to

accept from you a majority verdict. It is desirable that you should be unanimous, but if that is not possible, I can accept

from you 11/1 or 10/2. But you cannot, under any circumstances, drop below 10, and I was proposing after the majority

direction to give you a choice of continuing this evening or resuming in the morning. I would rather gather from something

you said a moment ago, that you might be able to finish this evening?

FOREMAN: I think we would like to continue, my lord.

JUDGE: Very good, thanks.”

[ Transcript 16 November 2009 (Day 9) p.8 line 3 to p.10 line 27]

65. Mr. Grehan S.C. then asked the judge to repeat some of his previous ruling.

“MR GREHAN: I know your lordship has dealt with the Act, but you have summarised in very brief terms the dicta that you

indicated to the jury earlier, given the very specific question that they have asked in terms of the inferences, I was

wondering if your lordship would, in fact, repeat at least some of the dicta, in particular the fact that before drawing any

inference, that they must be satisfied that the prosecution has established a prima facie case on which they can count,

and then only proceed to inferences to see if there's further evidence supporting or persuasive of the prosecution case

that's so found.

JUDGE: Well I've told them that.

MR GREHAN: It just seemed in the context of the particular question they asked that it would be highly relevant.

JUDGE: Well, I have told them that and I have, as I've said, summarised that material.

MR GREHAN: May it please the Court.”

[ Transcript 16 November 2009 (Day 9) p.10 line 32 to p.11 line 11]

66. This Court reviewed the transcript and considered that the learned trial judge did not fall into any error in the circumstances in

refusing to repeat his charge.

67. Mr. McCarthy S.C. for the DPP sought a direction that legal advice itself was not a bar to drawing the inferences. He continued, in

response to a question by the learned trial judge:-

“MR McCARTHY: That the legal advice furnished is not a bar to drawing the inferences, in circumstances where it clearly

called for an explanation. And I'll refer your lordship to page 808, which appears to be the model charge in the Judge's

Charge in a Criminal Trial; it deals with the case -- a specimen direction - -

JUDGE: All right, I think it proper to tell them that. Jury back please.”

68. However, Mr. Grehan S.C. then arose and stated:-

“MR GREHAN. Well, sorry, just if we're going to go down this particular route, I would like to be heard on it, because the

position is a little bit more complex than simply saying - I would suggest - that they don't have to rely on it. There has

been a number of cases in England where the provision in question which those cases refer is somewhat different to the

position in Ireland, and I'd be anxious that the jury wouldn't simply be told the position is they can simply ignore the fact

that the legal advice was given. It's still obviously a matter for themselves as to how they approach what inferences are

to be drawn.

JUDGE: Well, I propose to tell them simply legal advice given is not a bar to their drawing inferences, no more, no less.

MR GREHAN: Well, it just seems to me that if it's done in those stark terms, that it may well effect an injustice on an

accused who has received less than adequate legal advice in the circumstances.

JUDGE: Well, it's not for them to decide whether they're going to draw the inference if the legal advice was wrong?”

[ Transcript 16 November 2009 (Day 9) p.11 lines 20 to 34]

69. The exchange with counsel continued:-

“MR GREHAN: I appreciate that, and I thought the Court had already - -

JUDGE: No delicate way of doing this.

MR GREHAN: Oh, I agree completely, but I thought the Court had already dealt with it in [the] charge just earlier, in terms

of the fact that they don't have evidence of what advice was given, and that they're left in a situation, I think as the

Court put it, that ‘your right to be advised, you have a right to be advised by a solicitor, it's up to the solicitor to get the

advice that he, gives right’, but they don't know one way or the other.

JUDGE: Well, I think, to achieve balance, I should indicate that they are not precluded from drawing inferences from any

view they might take of the legal advice given.

MR. McCARTHY: In that regard, my lord, I just want to direct your lordship's attention, there's no evidence from the

solicitor as to the advice he's given; and it was not put for cross-examination.

JUDGE: Yes, it was different solicitors.

MR McCARTHY: I appreciate that, my lord, but it didn't stop from calling the solicitor as to what advice was given and

he'd have to give up his privilege in that regard, that's what my friend is contending for. In those circumstances, the only

evidence before the Court is what is contained in the statements, that he was given this advice, that is not a bar to

them drawing the inferences where it is in circumstances which called for his -- it's the circumstances which called for an

explanation, namely that his car was seen at this -- at the La Vista Avenue, and it was seen in Tallaght an hour-and-a-

quarter later.

JUDGE: All right, Mr McCarthy, you've persuaded me to leave it as it is.

MR McCARTHY: I think that's incorrect, my lord in relation to -- I think, your lordship is not doing a service to the issue in

that regard.

JUDGE: I'm trying to - -

MR McCARTHY: I know it's late in the evening, my lord, I accept that, but I think it should be dealt with.

JUDGE: Well, I told you what I was prepared to tell the jury, you don't seem to like that.

MR McCARTHY: I think it should be put in the context that it required an explanation - -

JUDGE: You're not going to drag me into the facts. Now, do you want it put or not?

MR McCARTHY: I don't -- it's a matter for you the manner in which you put it, my lord.

JUDGE: All right, jury back.

Jury returned (5.14 p m)

JUDGE: Mr Foreman, I just want to make it clear to you that the fact that the accused received legal advice doesn't

preclude you from drawing inferences, that's all.

Jury retired (5.15 pm).”

[ Transcript 16 November 2009 (Day 9) p.12 line 36 to p.13 line 11]

70. On the issue of legal advice, the learned trial judge acknowledged that advising a client on the inferences issue was difficult. He

gave a short advisory to the jury. Counsel submitted to this Court that that was not what was required. There was the exchange

between counsel and the Court. The ruling has to be read in the whole context of the trial. This Court saw no error arising in relation

to this aspect either, on its review of the transcript.

Decision

71. The Court considered the transcripts carefully in January, 2013. To ensure that no injustice had been done, the Court has spent a

considerable amount of time reviewing them again. In all the particular circumstances of the case, on the run of the trial, the Court

does not consider that the learned trial judge erred on the grounds raised in the application for leave to appeal. The Gardaí explained

the situation to ensure that the applicant understood. He obtained a solicitor. He was satisfied with his solicitor. His solicitor did not

give evidence. There was no issue argued before the learned trial judge as to whether the solicitor gave good, bad or indifferent

evidence. Some details of the interview were set out in the previous judgment, and are repeated in this judgment. No requisition was

made on the point of law now advanced.

72. The issue of caution was before the Court. The standard caution was given in the case. While a new caution format has been

envisaged, no regulation has yet been made. It was submitted that the caution was not enough. However, in all the circumstances,

the Court considered that there was no error by the learned trial judge.

73. The Court was and continues to be satisfied that in all the circumstances of the trial, including the evidence as to the nature of

the interview with the applicant, that there was no error by the learned trial judge, either in his charge or re-charge.74. The

judgment delivered by this Court in January, 2013 is final. In an exercise to ensure that justice was done, the Court revisited the

transcripts and reviewed them. The Court finds no grounds upon which there was an error of law by the learned trial judge such as to

grant leave to appeal on any aspect of the inferences issue, in all the circumstances of the run of the trial in this case.

Reasons

75. In writing a judgment, a court is not required to address each and every aspect of every issue raised by counsel.

76. As was stated in Ruiz v. Spain (2001) 31 EHRR 22.

“Judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which

this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of

the circumstances of the case (See Ruiz Torija v. Spain and Hiro Balani v. Spain , loc. cit., paras 29 and 27 respectively,

and Higgins and Others v. France: (1999) 27 E.H.R.R. 703 , para. 42. Although Article 6 (1) obliges courts to give reasons

for their decisions, it cannot be understood as requiring a detailed answer to every argument (See Van de Hurk v.

Netherlands (A/288): (1994) 18 E.H.R.R. 491 , para. 61. Thus, in dismissing an appeal, an appellate court may, in

principle, simply endorse the reasons for the lower court’s decision (See, mutatis mutandis, Helle v. Finland: (1998) 26

E.H.R.R. 159 , paras 59 and 60.)

27. In the present case the Court notes that at first instance judge No. 12 of the Madrid Court of First Instance took into

account in his decision the defendant’s statements denying the facts alleged by the applicant in his claim. It held that the

evidence of a witness called by the applicant was not conclusive and ruled that the applicant had not proved that he had

performed the services for which he was claiming a fee (See paragraph 13 above).

[…]

29. In the light of the foregoing considerations, the Court notes that the applicant had the benefit of adversarial

proceedings. At the various stages of those proceedings he was able to submit the arguments he considered relevant to

his case. The factual and legal reasons for the first-instance decision dismissing his claim were set out at length. In the

judgment at the appeal stage the Audiencia Provincial endorsed the statement of the facts and the legal reasoning set

out in the judgment at first instance in so far as they did not conflict with its own findings. The applicant may not

therefore validly argue that this judgment lacked reasons, even though in the present case a more substantial statement

of reasons might have been desirable.

30. In conclusion, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of

Article 6 (1) of the Convention.”

77. Also, in Vrabec And Others v. Slovakia (Application no. 31312/08) (Unreported, European Court of Human Rights, 26th March,

2013)

28. The Court further reiterates that Article 6 § 1 of the Convention obliges the courts to give reasons for their

judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to

give reasons applies may vary according to the nature of the decision (see Ruiz Torija v. Spain, 9 December 1994, § 29,

Series A no. 303-A).

Conclusion

78. This was an application for leave to appeal brought by the applicant before the Court of Criminal Appeal. The Court had before it

papers, including the transcripts of the trial, the notice of application for leave to appeal, written submissions on behalf of the

applicant (47 pages), written submissions of the DPP (36 pages), and the Court heard oral submissions during a hearing lasting one

day on the 28th January, 2013. After careful consideration, on the 14th March, 2013, the Court delivered a reserved judgment. It

concluded that it was satisfied that there had been no error by the learned trial judge.

79. The decision of the Court is final, subject to a s. 29 appeal. However, the applicant sought to bring a motion before the Court.

80. The Court of its own discretion determined, in the interests of justice, to hear the applicants, which it did on the 26th November,

2013, when the issues as set out above were raised.

81. The Court is satisfied that the appeal was determined on the 14th March, 2013.

82. The Court is not required to address each and every aspect of arguments raised by counsel. The kernel of the appeal related to

the admissibility of evidence in circumstances where counsel submitted, on behalf of the applicant, for reasons related to the law on

inferences, that it should not be admitted. The Court has held that the trial court did not err in that decision. It is not necessary for a

court to write an exposition on all arguments and aspects of arguments raised.

83. The case was affected by a change of counsel between the trial and the appeal; a second team picking over the trial and raising

issues, in some aspects, with a different nuance.

84. It is well settled that issues not raised and addressed by a trial judge cannot be the subject of an appeal (save in very

exceptional circumstances which do not arise here).

85. Counsel raised several net issues arising on aspects of a trial for murder which lasted for ten days before the Central Criminal

Court (Carney J.).

86. Having reviewed the transcript again, in an exercise to ensure that justice has been done, the Court is satisfied that the

application for leave to appeal was refused correctly. It is the responsibility of the Court to ensure that there has been no unsafe

conviction. The Court is satisfied that there has been no unsafe conviction in this case.