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Irish Court of Criminal Appeal
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Cite as:  IECCA 86
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Judgment Title: DPP -v- Raymond Gormley
Composition of Court: Finnegan J., Hanna J., Charleton J.
Judgment by: Finnegan J.
Status of Judgment: Approved
Notes on Memo: Leave to appeal against conviction refused
COURT OF CRIMINAL APPEAL
RECORD NO. 20/08
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of the Court delivered on the 27th day of July 2009 by Finnegan J.
The applicant was charged with the following offences:-
1. Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001.
2. Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.
On the 7th November 2007 he was found not guilty on count 1 and on count 2 not guilty of rape but guilty of attempted section 4 rape.
On the 24th April 2005 the complainant was alone in her house. She knew the applicant having met him socially on a number of occasions. They became quite friendly. In the early hours of that morning the complainant awoke to find the applicant beside her in her bed. He had gained access by climbing a drain pipe and entering through an upper floor window. The complainant’s evidence was that the offences with which the applicant was charged then occurred. Shortly thereafter the applicant left the premises through the front door.
Later that morning, a Sunday, the complainant contacted the Garda Síochana. She identified the applicant. Immediately the Gardaí ascertained the applicant’s address which was in an apartment complex. On arriving at the apartment complex the Gardaí met with the owner of the same who admitted them to the apartment block. They went to the applicant’s apartment. The door to the same was open. They called out and entered and climbed an internal stairway. They found the applicant reading a newspaper and he invited them to come in. The applicant was cautioned and a number of questions were put to him. He identified the clothing he had been wearing that morning. In answer to questions he admitted climbing the drain pipe at the back of the complainant’s house and entering through an upstairs window. The applicant was then arrested and taken to the Garda Station arriving at 2 p.m. He was processed. Two interviews took place:-
1. Interview commencing 3.10 p.m. and terminating 4.46 p.m.
2. Interview commencing 6.47 p.m. and terminating 8.33 p.m.
In the course of processing at the Garda Station the applicant was informed of his entitlement to consult a solicitor. At 2.15 p.m. the applicant requested as his solicitor either Mr Cathal Quinn or Mr Kieran Dillon. No mobile phone number for either of these solicitors was available and they were not in their respective offices. A Garda car was dispatched to find Mr Dillon. It first called to his parents home where there was no response. Gardaí then called to Mr Dillon’s home where they spoke to his wife. She agreed to contact Mr Dillon. These events occurred between 2.15 p.m. and 2.45 p.m. At 3.05 Mr Dillon telephoned the station and said that he would call to the station shortly after 4 p.m. At 4.48 p.m. the applicant’s solicitor arrived at the station and he met with the applicant at 5 p.m. The solicitor remained with the applicant until 5.45 p.m.
Grounds of Appeal
The Notice of Appeal contained a single ground as follows:-
“The learned trial judge erred in fact and in law in admitting into evidence the statements allegedly made by the accused to the prosecuting Guards.”
In submissions the admissibility of statements was challenged on two grounds:-
1. The entry into the applicant’s dwelling was unlawful and therefore his arrest was unlawful and interviews consequent upon the entry and arrest should have been excluded, and
2. The interviews were obtained in breach of the applicant’s constitutional right of access to his solicitor and ought to be excluded.
It is proposed to deal with each of these grounds in turn.
1. Entry into the Apartment
The applicant did not give evidence. Sergeant McGonigle gave evidence. At about 1.30 p.m. he went to the Quiet Moment Apartments with Sergeant Gillespie and Garda Flatley. The bell/intercom for Flat No. 5 at the common entrance to the complex was not working. As they were standing at the entrance to the apartment complex the owner of the complex arrived and admitted them. They went to the entrance door to the applicant’s apartment. The door was open. He pushed it open and walked in and shouted “Hallo” but received no reply. There was a workman inside. He climbed the internal stairway, put his head around the door and saw the applicant sitting reading a newspaper. He asked:
“Raymond, do you mind if I come in and speak to you for a few minutes?”
The applicant replied:-
“Come on in, Séamus.”
He proceeded to ask the applicant a number of questions and put the complainant’s allegations to him. The applicant was co-operative and answered the questions which he was asked. Sergeant McGonigle arrested the applicant under section 4(3) of the Criminal Law Act 1997.
Sergeant McGonigle was cross-examined. His statement was put to him. In the statement he said:-
“I went upstairs along with Sergeant Gillespie and Garda Flatley to the door of apartment no. 5 which was open. I knocked on the door and as there was no reply we went up the internal stair. At the top and I observed Raymond Gormley sitting down reading a newspaper.”
He accepted that in his statement he did not mention calling out. However his clear recollection was that he had in fact called out.
Sergeant Gillespie gave evidence. When the Gardaí got to the apartment door it was ajar. When they entered Sergeant McGonigle called out. The applicant was sitting in the living room area of the apartment and said:-
“Come on in, Séamus.”
In cross-examination he said that his recollection was that Sergeant McGonigle knocked at the door and called out at the same time.
Garda Flaherty gave evidence that when the Gardaí got to the door of the apartment the door was open. They entered and went up the internal stairs. The applicant invited them in. In cross-examination Garda Flatley said that Sergeant McGonigle did call out when they got to the door of the apartment.
On behalf of the applicant it is submitted that the entry into the apartment was a civil trespass. Reliance is placed on dicta in Director of Public Prosecutions v Gaffney  1 I.R. 173. It was there held by the Supreme Court (Henchy J. dissenting in part) that in the light of the particular circumstances and the trial judge’s finding that there was no invitation to enter, the defendant’s arrest was in violation of Article 40, s.5 of the Constitution, because in view of the fact that the Gardaí had twice been refused entry there could be no presumption that there was an invitation to enter either as a matter of fact or law merely because there was no express refusal. In the course of his judgment with which Finlay C.J., Hederman J. and McCarthy J. concurred Walsh J. said:-
The learned High Court judge was of opinion that ‘there was no invitation in the ordinary sense of the word to enter the premises’, but said ‘there was certainly no refusal, no request to leave, no rejection of the opportunity of the Inspector to make a common law arrest’. In view of the fact that the Gardaí had twice been expressly refused permission to enter the house and that there had been no express invitation in the ordinary sense to enter the premises, an invitation cannot be presumed either as a matter of fact or of law simply because there was no express refusal. Notwithstanding the decision of O’Hanlon J. in Director of Public Prosecutions .v. Closkey (unreported, High Court, 6th February 1984) and the English decision of Morris v Beardmore  A.C. 446, it is my view that the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter particularly in the circumstances of this case. The latter decision not only adds no support to the view that police officers in such a situation as the present one had any lawful authority to be in the house but makes it quite clear that without permission to be present in the house the policeman was a trespasser.”
Later in the course of his judgment Walsh J. said:-
“So far as the lawfulness of their presence in the house was concerned the only question was whether there was permission, express or implied, to be there.”
The issue upon which Henchy J. dissented is not relevant to his view on the general issue in the case. At page 182 he said:-
It is clear from the foregoing that the test in each case is whether the Gardaí are on the premises as trespassers at the relevant time. In the present case the Gardaí entered the premises without invitation or licence and at that time were trespassers. However upon the applicant issuing the invitation “come on in, Séamus” the presence of the Gardaí on the premises became authorised: they were now invitees. That the character upon which a person enters and remains upon premises may alter in this manner is well established: Burton v Scott  9 L.T.O.S. 313, Moxon v Savage  2 F & F 182. From the issue of the invitation the presence of the Gardaí on the premises was not a trespass nor was it unlawful. Statements were taken thereafter and at the time the statements were taken, the relevant time, the Gardaí were not trespassers. It follows from this that neither the statements taken nor the arrest were unlawful on the basis contended for by the applicant.
The applicant is refused leave to appeal on this basis.
Denial of right of access to a solicitor
The applicant requested a solicitor at 2.15 p.m. Following attempts to contact the solicitor, the solicitor telephoned the Garda Station at 3.05 p.m. and stated that he would attend shortly after 4 p.m. The first interview of the applicant commenced at 3.10 p.m. and terminated at 4.46 p.m. The applicant’s solicitor arrived at the Garda Station at 4.48 p.m. During the first interview the applicant made a number of inculpatory admissions. It is accepted that the Gardaí made efforts to contact the applicant’s solicitor: however, it is submitted that insufficient time was allowed before commencing the interview to allow the solicitor to attend at the Garda Station. The applicant relies on The People (At the Suit of the Director of Public Prosecutions) v Paul Healy  2 I.R. 73 where it is held that the right to reasonable access to a solicitor is derived from the Constitution. In that case the right of access to a solicitor by a person in detention was recognised. It was held that the right of a defendant to reasonable access to his solicitor meant a right to be immediately informed of the solicitor’s arrival and to be given immediate access to him.
The respondent relies upon the decision of this court in The People (Director of Public Prosecutions) v Buck  2 IR 268. It was there held that where a person in custody requests a solicitor and makes an incriminating statement prior to the arrival of the solicitor then that statement will be admissible in evidence unless there has been a deliberate and conscious violation of the applicant’s constitutional right of access to a solicitor where a failure to observe reasonable standards of fairness will require the exclusion of the statement. Keane J. went on to say:-
“Assuming that, in the present case, the trial judge was entitled to conclude that the arrest and detention of the defendant was lawful and did not constitute a mala fide attempt to ensure that he was without legal advice while he was being interrogated and that the Gardaí made bona fide attempts to secure the presence of a solicitor when the defendant requested them to do so it would follow that there was in this case no deliberate and conscious breach of his constitutional right of reasonable access to a solicitor and, on that assumption, his detention remained lawful. It would also seem to me that, where a person being detained under a statutory provision asked for a solicitor to be present and the Gardaí made bona fides attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy.”
In the present case this court is satisfied that it was open to the learned trial judge to conclude that the attempts by the Gardaí to make contact with the solicitor nominated by the applicant are bona fide and reasonable. In the course of his ruling the learned trial judge said:-
“Between 2.15 and 3.10 they made efforts to find Mr Dillon. I am satisfied that those efforts were reasonable and the best they could be expected to do in the situation. They were conscious of the fact that they had only six hours to conduct an investigation in the second most important crime in the criminal calendar and they had a duty to do and the constitutional rights which should attach to the investigation have to be considered and balanced against the constitutional rights of the accused.
The court refuses the applicant leave to appeal on this ground.
For the reasons hereinbefore set out the applicant is refused leave to appeal.