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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP v Bryan Ryan DPP v Bryan Ryan  IECCA 6 (11 March 2011)
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Judgment Title: DPP v Bryan Ryan
Composition of Court: Murray C.J., Budd J., Edwards J.
Judgment by: Murray C.J.
Status of Judgment: Unapproved
Outcome: quash conviction & direct re-trial
THE COURT OF CRIMINAL APPEAL
Record No: 290/08
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered by Murray C.J. on the 11th day of March 2011
On 5th December, 2008, the applicant was convicted of the murder of one Ian Tobin on 27th May, 2007, at 46A Fortlawn Park, Blanchardstown, Dublin 15 following a twelve day trial. The jury convicted the applicant by a majority of ten. The applicant applies to this Court for leave to appeal against his conviction. The grounds of appeal are referred to later in this judgment.
Mr. Ian Tobin died from wounds sustained when he was struck in the right hand side of the neck by pellets discharged from a sawn-off shotgun in the early hours of the morning of 27th May, 2007, at 46A Fortlawn Park, Blanchardstown, Dublin 15. The deceased had been attending a drinking party at the house where he was killed. The house in question was the residence of a Ms. Rachel Curtis, who regularly hosted such parties. There was a knock at the door sometime around 5 a.m. and a young woman named Danielle Finn went out to see who was there. She looked through an adjacent window and saw a person standing outside. This person was wearing a motorcycle helmet. Ms. Finn did not open the door as she did not know the caller and instead went back into the sitting room of the house. Ian Tobin then walked out towards the door and as he did so he was shot through a window beside the door. The prosecution’s case was that Ian Tobin was not the intended victim of the shooting and that the intended victim was in fact his brother Blake Tobin.
The gardaí and a fire brigade and ambulance were called to the scene. When they arrived they found Ian Tobin lying mortally wounded in the hallway. He was still alive and conscious at this point and was rushed to Blanchardstown Hospital. He lost consciousness en route to the hospital and shortly after arriving there was taken to an operating theatre for emergency surgery. He never recovered consciousness and died in intensive care after the operation. The evidence of the State Pathologist, Professor Cassidy, who subsequently performed a post-mortem examination on Ian Tobin’s body, was that there were multiple pellet wounds to his neck and to the structures within his neck which would have resulted in considerable blood loss and breathing difficulties. Despite the surgical treatment he received he was unlikely to have made any recovery. Professor Cassidy testified that Ian Tobin’s cause of death was “shotgun injury to the neck, blood loss and obstruction of the airways.”
Following Ian Tobin’s removal from the scene to hospital, the gardaí immediately commenced an investigation into the incident. At about 5.30 a.m. on the same date, a stolen high performance motorcycle was found burning a short distance away from the scene. It was the prosecution’s case that this motorcycle was used to transport the shooter, alleged to be one Michael Murray, to and from the crime scene, and that it was being driven at the material time by the applicant who was party to a common design with the said Michael Murray to murder the aforementioned Blake Tobin.
Michael Murray is a long time friend and associate of the applicant. His daughter is the applicant’s girlfriend. There was evidence at the trial of a history of bad blood between Blake Tobin and Michael Murray. About a year and a half prior to the shooting of Ian Tobin, Blake Tobin became involved in a violent altercation with Michael Murray which was the genesis of what subsequently became an ongoing dispute or feud. This altercation occurred at a party in a Ms. Phyllis Burke’s house in Huntstown. Amongst those present were Michael Murray, Blake Tobin and the applicant. Blake Tobin testified at the applicant’s trial that on that occasion Michael Murray had grabbed a knife in the kitchen and had tried to stab him. The applicant was present during this altercation. The dispute was revived shortly before the date on which Ian Tobin was shot at yet another house party in Rachel Curtis’s house. On this occasion Michael Murray was punched in the face by Blake Tobin and once again the applicant was present. The prosecution’s case was that arising from him having witnessed these altercations, and being sympathetic to his friend Mr. Murray, the applicant formed a strong dislike of Blake Tobin and was thus motivated to become involved in a joint enterprise with Michael Murray to kill Blake Tobin.
THE EVIDENCE OF THE PROTECTED WITNESS, KEVIN WHELAN
The principal prosecution witness was a Mr. Kevin Whelan who had known the applicant for a number of years. Mr. Whelan is a person who is receiving protection under the Witness Protection Programme. He gave evidence of having discussed with the applicant the incident that had occurred in Phyllis Burke’s house in Huntstown in which Mr. Murray had attempted to stab Blake Tobin. He recounted how the applicant had told him that Mr. Murray was going to kill Blake Tobin, and more particularly that he was going to shoot him. According to Mr. Whelan, the applicant “said it a few times”. Further, Mr. Whelan testified that on one occasion, at a meeting at the McDonalds Drive-Thru in Blanchardstown, Mr. Murray pulled him (i.e. Mr Whelan) aside and asked him to help him “get” Blake Tobin. Mr. Whelan said that he declined as he did not want to get involved.
Mr. Whelan then gave further evidence that on the evening of the shooting he had gone to Rachel Curtis’s house at 46A Fortlawn Park, Blanchardstown at between 8 and 9 p.m.. While he was there he received phone calls from the applicant on a number of occasions. During the first of these phone calls he informed the applicant as to where he was, and asked him “are you coming up”. The applicant said he was “out with Mick Murray”. Mr. Whelan then told the applicant that Blake (Tobin) was not there and again encouraged him to come up. Subsequent to this, sometime in the early hours of the following morning, and while Mr. Whelan was still awaiting the arrival of the applicant and Mr. Murray, Blake Tobin arrived at 46A Fortlawn Park. According to Mr. Whelan, Blake Tobin was very drunk and threw a CD case at a person called Gavin McCullagh and “busted his head open”. Mr. Whelan gave evidence that he then left the house with Mr. McCullagh and they drove away in his (Mr. Whelan’s ) car. He testified that as he was driving away he received another phone call from the applicant who told him that he had just seen his car leave the house at 46A Fortlawn. The applicant asked why he was leaving and he told the applicant that Blake (Tobin) had arrived at the house, had started trouble and had “split Gavin McCullagh with a yoke”. According to Mr. Whelan, the applicant asked if Blake was in the house and then said that he (Blake Tobin) was “getting it” or was “going to get it”. Mr. Whelan testified that on hearing this he hung up the phone and four or five minutes later he received yet another phone call from the applicant. In the course of this phone call the applicant informed him that Blake had been shot. Mr. Whelan also testified that in the course of a meeting with the applicant after the shooting, the applicant had told him to get rid of his phone and to tell Gavin McCullagh not to open his mouth. He also stated that the applicant told him that the motorbike used in the shooting had been stolen in Pinebrook, and that it had been burnt out in a garden in Sheepmoor after the shooting.
THE TELEPHONE EVIDENCE
The prosecution case was that the various phone calls made by the applicant to Kevin Whelan on the night of 26th/27th May, 2007, were made using a mobile phone belonging to Mr. Murray. Subsequent to the shooting, Mr. Whelan’s mobile phone was recovered by the gardaí and was technically examined. It was found to have received a number of calls from the number 087-3226690 on the night in question. Moreover, a Vodafone “Ready To Go” SIM pack was recovered during a search of Mr. Murray’s house and this SIM pack utilised, or had allocated to it, the number 087-3226690. The applicant’s own phone was also subsequently examined, and the number 087-3226690 was found listed as “Mick M.” in the directory on that phone. It was also listed in the applicant’s girlfriend’s (i.e. Mr. Murray’s daughter’s) phone as “Da”. Following his examination of Mr. Whelan’s mobile phone, Detective Garda Eamon O’Brien, an expert in mobile telephone technology, gave evidence of telephone calls received on that mobile phone on the night in question from another mobile phone utilising the SIM card to which the number 087-3226690 was allocated. Detective Garda O’Brien testified that during the time period running from 01:51.46 to 18:07.00 on 27th May, 2007, there was a record of thirteen such phone calls having been received, and he gave detailed evidence concerning the precise times and duration of each respective phone call.
ADMISSIONS BY THE APPLICANT
Apart from the evidence of Kevin Whelan, and the other circumstantial evidence already mentioned, the prosecution also adduced evidence before the jury of admissions made by the applicant in the course of an interview conducted between 9.39 a.m. approximately and 10.45 a.m., while he was detained at Blanchardstown Garda Station on 21st June, 2007, having been arrested on foot of a warrant issued pursuant to s. 30A of the Offences Against the State Act 1939. The memorandum containing the said admissions is of the “mixed” variety in that it contains material which is partly inculpatory and partly exculpatory.
To the extent that it is inculpatory, the applicant admits to being the driver of the motorcycle at the time of the shooting; he identifies his girlfriend’s mobile phone and his own mobile phone; and he admits to driving to Sheepmoor Drive after the shooting and burning the motorbike in the garden of a vacant house that used to be occupied by a Carmel Burke and Brendan Burke, as well as purportedly burning a helmet, tracksuit bottoms and a fluorescent jacket. He also confirmed that the motorcycle travelled through Whitestown en route to Fortlawn, a fact known to the gardaí in any event from security video footage recovered separately. Finally, when a video still image taken from a C.C.T.V. camera outside a Lidl supermarket premises was shown to him, he acknowledged that it was “a possibility” that he was the motorcycle driver captured on that image.
To the extent that it is exculpatory, the applicant contended that he did not think that anything was going to happen. When it was put to him that he had told Kevin Whelan on the telephone at 5.13 a.m. that he had seen him drive away from 46A Fortlawn Park, and that he had said that he and Michael Murray were on their way to 46A Fortlawn Park, he denied it. He denied that Michael Murray was with him. He further denied an intention to shoot anyone. He contended that when they arrived at Sheepmoor after the shooting, his companion jumped off the motorbike and ran off. He denied the earlier alleged meeting with Kevin Whelan and Michael Murray at the McDonalds Drive-Thru, contending that Whelan is “a looney”. He said he did not know there was any gun and said that he thought “your man was going to just run up to the door and frighten them”.
THE APPLICATION FOR LEAVE TO APPEAL
Following his conviction and sentence to life imprisonment, the applicant applied to the learned trial judge for a certificate that the case was a fit case for appeal, and that was refused. He now seeks the leave of the Court of Criminal Appeal to appeal.
The proposed grounds of appeal are set out in great detail in his notice of appeal, and they may be grouped as follows:
A. The learned trial judge ought not to have admitted before the jury evidence of the statements made by the applicant in the course of being interviewed while he was in garda custody at Blanchardstown Garda Station between 09.36 a.m. and 10.45 a.m. on 21st June, 2007 that is to say a record of a portion of an interview that took place between 08.24 and 10.45 a.m. on that date. (Grounds 1 – 6 inclusive);
B.(i) The trial was unsatisfactory and the verdict is unsafe because the learned trial judge refused to compel the prosecution to require disclosure to the defence of details of all arrangements and benefits accorded to a key witness who was participating in a witness protection programme.
(ii) the learned trial judge failed to give the jury appropriate warnings concerning the protected witness’s evidence and in particular as regards corroboration of such evidence (Grounds 7 – 9 inclusive); and
C. The trial was unsatisfactory and the verdict is unsafe because the learned trial judge did not direct the jury that a verdict of manslaughter could be returned as an alternative to a verdict of murder (Grounds 10 - 11 inclusive).
Group A grounds – the general context
On 20th June, 2007, at 12.35 approximately, the applicant was arrested pursuant to s. 30A of the Offences Against the State Act 1939, as amended. He was then conveyed to Blanchardstown Garda Station, arriving there at 13.10, where he was detained. He was released from detention shortly after 12.36 on 21st June, 2007.
During the twenty-four hours of his detention he was interviewed on six occasions. The interviews were as follows:
17.15 to 18.10 on 20th June, 2007;
19.30 to 21.15 on 20th June, 2007;
22.00 to 22.50 on 20th June, 2007;
08.24 to 10.45 on 21st June, 2007; and
11.36 to 12.36 on 21st June, 2007.
The learned trial judge ruled that the contents of interviews (a), (b), (c) (d) and (f) were to be excluded entirely, as well as the portion of interview (e) (i.e the fifth interview) running from 08.24 to 09.36 on 21st June, 2007. The reason for the exclusion of all of this evidence was that the learned trial judge was of the firm view that the applicant had been denied his constitutional right to have reasonable access to a solicitor while the relevant interviews (with the exception of the fifth interview post 9.36 a.m.) were taking place. Accordingly, only those statements made in the course of the fifth interview in the period from 09.36 to 10.45 on 21st June, 2007, were admitted in evidence. These statements included certain inculpatory admissions by the applicant.
The basis on which they were admitted was that telephone access to a solicitor provided to the applicant at approximately 9.36 a.m. on 31st June, 2007, was sufficient to bring to an end the unconstitutionality of his detention with the result that the remainder of that interview was lawfully conducted.
In so ruling the learned trial judge appears to have implicitly accepted the submission of prosecuting counsel that he was entitled to take that view on the authority of the decision in The People (Director of Public Prosecutions) v. O’Brien  2 IR 206.
The basis of this part of the appeal
There are two main components to this part of the appeal and each of these has a number of sub-components.
The first component concerns access to a solicitor/legal advice and there are two sub-components to this. The first of those is that the applicant contends that the learned trial judge was in error in admitting in evidence the portion of interview (e) (i.e. the fifth interview) which he did admit, inter alia, on the ground that the very brief contact that occurred between the applicant and his solicitor at approximately 9.36 a.m. was insufficient to vindicate the applicant’s right to reasonable access to a solicitor. The second sub-component involves his contention that the admissions in question ought to have been excluded on the basis that a causal link existed between the admissions made after 9.36 a.m. on 21st June, 2007, and the questions asked and the answers given by the applicant in the course of his unconstitutional detention, both on that date and on the day before.
The second component concerns the learned trial judge’s refusal to exclude the portion of interview (e) (i.e the fifth interview) recorded after 9.39 a.m. on 21st June on the grounds that the admissions contained therein were involuntary, or alternatively, if they were voluntary that they were procured in circumstances where minimum standards of fairness had not been observed. Again there are a number of sub-components to this. The first is that the admissions were the product of oppressive conduct by the gardaí during the earlier interviews, the effects of which had not dissipated. The oppression relied upon included allegations of the systematic denial of reasonable access to a solicitor, misrepresentation of the law, shouting and jeering at the applicant and taunting of the applicant. The second is that the admissions were the product of threats proffered, or alternatively, inducements offered, to the applicant.
The evidence on the access to a solicitor/legal advice issues
The applicant was brought to Blanchardstown Garda Station on 20th June, 2007. He was presented to the then member in charge, Sergeant Peter Burke. Sergeant Burke gave evidence of contacting Messrs. Hanohoe Solicitors at 1.30 p.m. in circumstances where the applicant had arrived at the station at about 1.10 p.m. Messrs. Hanahoe returned the telephone call at about 1.36 p.m. and the applicant then spoke privately with his solicitor for about three minutes between 1.38 p.m. and 1.41 p.m. The applicant had a second telephone consultation with his solicitor on the afternoon of 20th June, 2007, when his solicitor, Mr. Hanahoe, rang the garda station at 4.30 p.m. and requested to speak to the applicant. The solicitor was telephoned back approximately five minutes later and the applicant was afforded another opportunity to talk to him. This transaction is recorded in the custody record.
The precise duration of this telephone contact is unclear on the evidence. At any rate, the applicant made no admissions during his first two interviews. In the course of the third interview, which commenced at 7.30 p.m. on 20th June, 2007, the applicant did make admissions but only after he had requested further access to his solicitor, which request was not acted upon or made known to the member in charge. There was yet another interview later that evening but the applicant was not afforded any further opportunity of consulting with his solicitor on 20th June, 2007.
There was then the fifth interview with the applicant which commenced at 8.24 a.m. on 21st June, 2007. Sergeant Burke was once again on duty as the member in charge of Blanchardstown Garda Station at that time. He gave evidence that when the applicant was being taken to the interview room on the morning of 21st June at about 8.24 a.m., he spoke to the applicant. The applicant did not request a solicitor. Sergeant Burke said “he confirmed he understood that there was an interview going to take place and he had no requests”. Sergeant Burke also gave evidence that at about 9.36 a.m., Messrs. Hanahoe Solicitors again contacted Blanchardstown Garda Station in relation to the applicant. Sergeant Burke went to the interview room, where the applicant was then being interviewed, to inform him that his solicitor was on the phone. The applicant said that he wished to consult with his solicitor and Sergeant Burke took the applicant from the interview room to the telephone, where he had a telephone consultation with his solicitor in private, which Sergeant Burke said lasted approximately three minutes. However, Detective Garda McDevitt, who was one of the interviewing gardaí, accepted in the course of his cross-examination that the videotape record showed that the duration of the applicant’s absence from the interview room was just one minute twenty five seconds. The applicant was then brought back to the interview room and the interview recommenced at approximately 9.39 a.m. and continued for about one hour more.
When the applicant was brought back to the interview room he was spoken to by Sergeant Burke and there is both a written and a video record of what was said, but unfortunately neither record is completely satisfactory. The written record suggests that what was said was “Have you had enough time, Bryan, with your solicitor”. However, it was contested by the defence that the written record was accurate and it was suggested that the video record recorded something different. The video was replayed to the Court on day 8 of the trial and it was established that the accompanying audio track (which was not completely clear) does record that Sergeant Burke had said to the applicant “Happy enough, so Bryan [something] on your solicitor”. The position therefore seems to be that while it is not entirely clear as to the precise question that was asked, and in particular whether the applicant was expressly asked whether he had enough time with his solicitor, there can be no doubt but that the applicant was at least asked whether he was happy after his telephone conversation with his solicitor. It is common case that he answered in the affirmative.
The final and sixth interview with the applicant commenced at 11.36 a.m. on 21st June, 2007. Once again the applicant made admissions in the course of this interview. However, at 11.41 a.m., just shortly after the commencement of the interview, the applicant said “Before you start, there is something I want to tell you, but I will have to see my solicitor first”. Detective Garda McDevitt, who was making the written note, responded “You want to tell me about something?”, to which the applicant replied “I want to tell you something but I will have to see my solicitor first”. Detective Garda McDevitt then said “Well I have to keep going anyway until your solicitor gets here, alright? What time did he say he will be here at?”. The applicant responded “He said he would be here this morning some time”. Detective Garda McDevitt then asked “Is he in court?”, to which the applicant responded “I don’t know. I was just on the phone to him there this morning and I asked him was he coming and he said he will be in to me this morning. I don’t think I should go on until I do see him, because I have something else to tell yous, you know?” Detective Garda McDevitt then said “Bryan, your detention is up in less than an hour… is there something you want to stay after his consent [sic]… it is completely up to you. Did you want to tell us more in relation to what you are here for; you have more or less told us everything?”. The applicant went on to say “I have said things but all it is not true, and I have more or less been put up to saying things as well. I have been told to say things and put my hands up to things; otherwise it is going to fall back on my family. That is why I wanted to see a solicitor yesterday, now”. Detective Garda McDevitt asked “you spoke to your solicitor yesterday?”, and the applicant “yeah, on the phone. He was just saying ‘how you getting on?’ and all. I was just saying I was in here. I did not say anything to my solicitor about…[in comprehensible]”. All of the contents of this latter interview were also excluded as evidence by the trial judge.
In the course of the voir dire the applicant gave evidence dealing, inter alia, with the question of access to a solicitor. In direct examination on the issue he said that he believed that he and his solicitor were “going to sit down and have a conversation and talk through everything”. When he was asked about the suggestion that he was happy having spoken to his solicitor and that he had so expressed himself to the member in charge, he said that he remembered that. Asked what was in his mind when he was saying that, he said “he was just asking me basically just did I speak to my solicitor, and I just says ‘yes’”. Under cross-examination, the applicant confirmed that he had spoken to his solicitor shortly after his arrest and he identified the solicitor with whom he had spoken then and on other occasions throughout his detention as Mr. Michael Hanahoe. When asked whether he had asked his solicitor to come to the station to visit him, the applicant’s answers were non-committal. He initially said “I think I just told him I needed to see him, yes”, but then said “I’m not too sure but I think he actually said he would be down to see me. I am not too sure”. When the applicant was asked about his conversation with his solicitor at 4.35 p.m. on 20th June and whether or not he had asked his solicitor to come to the station on that occasion, his answer was “I am not too sure, too sure”. It was put to the applicant that he had had a conversation with his solicitor on the following morning at about 9.36 a.m. The applicant accepted that that was so but said that “I was not talking to him for long on the phone”. When pressed he accepted that it did not take long to ask someone to come to the station. He was then asked was his solicitor at fault in not coming to the station and his answer was “I do not know”. He was further asked if he was complaining about the fact that his solicitor did not come and his answer was “I would not really say I was complaining about it, now, but I would have liked to see him, yes”. The applicant confirmed in evidence that, as of the date of the trial, he was still using the same solicitor.
The trial judge’s ruling on the access to solicitor/legal advice issueIt was submitted to the learned trial judge on behalf of the applicant that he should exclude from the jury all of the admissions made by the applicant to the gardaí while he was in detention in Blanchardstown Garda Station on 20th and 21st June, 2007, on the grounds that they were obtained in deliberate and conscious violation of the applicant’s constitutional right of access to a solicitor, or alternatively, they were tainted by what had occurred when the applicant was in unconstitutional detention. In giving his ruling, the learned trial judge said:-
“As far as I am concerned, I do not have a moment’s hesitation in concluding that the constitutional right of access to a solicitor was roundly and flagrantly breached and abused in the course of the interview that took place on the evening of 20th June and I have no hesitation in ruling out of evidence everything that transpired after the request was made for a solicitor. That seems to be anything that occurred after 8.23; 8.23.50 was the time on tape. I have no hesitation in ruling out anything that occurred between that and 9.39 on the following morning, 21st June, and, equally, I have no hesitation in ruling out the entirety of the interview that commenced somewhere in the region of 11.37 on that same morning, 21st June, 2007. At this stage, I won’t say any more, but I propose, as I said, to set out in detail, before the jury, these matters, irrespective of the verdict that they return in due course.
The applicant, through his counsel, has filed detailed legal submissions in support of his contention that the learned trial judge’s ruling was legally flawed and these were further developed in oral argument at the hearing. They may be summarised as follows:
No meaningful opportunity to obtain legal adviceIt was submitted that the very brief contact that occurred between the applicant and his solicitor at approximately 9.36 a.m. on 21st June, 2007, was insufficient to vindicate the applicant’s right to reasonable access to a solicitor. It was urged upon the Court that the constitutional right enjoyed by a person in detention to be afforded reasonable access to a solicitor necessarily embraces being afforded a meaningful opportunity to obtain legal advice. In support of this, the applicant relies upon the statement of McCracken J. in The People (Director of Public Prosecutions) v. O’Brien  2 IR 206, at 212 to 213, where he said:-
The much more difficult question is whether the accused’s detention, having been rendered unlawful by the breach of his constitutional rights, remained unlawful. The initial arrest of the accused was undoubtedly lawful, as was his custody up to the time that he requested a solicitor. Thereafter, it was certainly wrongful of the gardaí to question him pending the arrival of the solicitor but that questioning is not what created the unlawfulness of his detention. The statements made by the accused pending the arrival of his solicitor would have been inadmissible whether there had been an undue delay in the arrival of the solicitor or not. What made the detention unlawful was the deliberate and conscious decision of the gardaí to contact Mr. Gaffney, rather than a more convenient solicitor, when they knew or ought to have known that there would be a very considerable delay in his attendance. That decision was made in breach of the accused’s constitutional rights and, therefore, from the moment that decision was made his detention became unlawful. The detention remained unlawful so long as the breach of the constitutional rights continued. Logically, therefore, once the breach of the constitutional right ceased, the detention ceased to be unlawful.”
Counsel for the applicant contends that it is self-evident that a phone call lasting less than 90 seconds (the phone call at approximately 9.36 a.m. on 21st June, 2007) could not possibly amount to a vindication of the accused’s constitutional right of reasonable access to a solicitor. Moreover, he suggests that the fact that the applicant repeatedly indicated in the sixth interview that he needed to discuss relevant matters with and get advice from his solicitor cannot be ignored when considering the position with respect to the portion of the fifth interview that was admitted in evidence. Counsel for the applicant submits accordingly that the learned trial judge erred in admitting in evidence the portion of interview (e) (i.e. the 5th interview) which he did admit.
Alleged general causative linkCounsel for the applicant further contends that there is a general causative link between matters confessed to by the applicant while he was in unconstitutional detention, and a repetition of those same matters during the portion of the fifth interview that was admitted in evidence. He suggests that O’Brien is not authority for the proposition that material elicited during unconstitutional detention is automatically admissible if it is later repeated in lawful detention. On the contrary, he says, O’Brien makes clear that the crucial question is whether there is “a causative link between the breach of his constitutional rights and the making of the statements or admissions.” (per McCracken J. at 211). The italicised words appear in their proper context in the following fuller quotation from the judgment. McCracken J. said, at 211 to 212:-
It was submitted that, as a matter of human psychology, once the full confession had been made in the unconstitutional period, that amounted to a causal link to any repetition of such admissions; that particular garda questions might or might not be demonstrated to be framed as arising from knowledge gained in the unconstitutional period, but it was entirely artificial to focus the enquiry in this way; and even if the enquiry was to be focused in that way, the whole of the interview began with the garda saying: “Bryan, just in relation to what you told us about the shooting on the 27th of May 2007”, and therefore on the premise that full admissions had been made and follow-up questions of detail were now being addressed.
It was further submitted under this heading that the learned trial judge, in ruling that he would rule out material that “has come solely and exclusively from the unconstitutional period of detention”, departed from the “causative link” test set out in O’Brien in as much as that test as formulated in O’Brien does not refer to “solely and exclusively”.
3. Alleged specific causative linkCounsel for the applicant further contends that there is also a specific causative link between particular questions asked and answered in the course of that portion of the fifth interview that was admitted in evidence and the earlier admissions elicited while the applicant was in unconstitutional detention. Three specific questions are identified and to which objection were taken. They are:
A. “I did not know there was any guns. I thought your man would run and frighten. This fellow told me stay away in the garden, so I got a bit iffy.”
The relevant earlier admission is to be found in the transcript at Book 6, p. 8, line 3 et seq and is in the following terms:-
A: “I think so.”
Q: “Was it Ian Tobin?”
A: “I doubt it.”
Q: “Was it Blake Tobin?”
A: “I cannot truly say, because I was only going there with your man.”
(b) The second question objected to relates to the burning of the motorbike. The objection is to be found in the transcript at Book 7, p. 1, line 10 et seq. The relevant question and answer was:-
A. They were left on top of the bike. I put the fluorescent jacket over the bike and I poured petrol in the helmet”
A. “Burnt them in Sheepmore, with the bike.”
Q. “What about the jackets and clothing you were wearing?”
A. “Burnt with the bike.”
(c) The third question objected to relates to the applicant’s unwillingness to name the shooter. The question and answer objected to were in the following terms:-
DECISION on the access to a solicitor/legal advice issue(i) Access to a solicitor/legal advice
and the causative link issue
The Court has no hesitation in accepting the correctness of the general proposition advanced, namely that the constitutional right enjoyed by a person in detention to be afforded reasonable access to a solicitor necessarily embraces being afforded a meaningful opportunity to obtain legal advice. Having said that, each case must depend upon its own particular facts and the Court is not satisfied in the particular circumstances of this case that there was a denial of the right in question during so much of interview (e) (i.e. the fifth interview) as followed the admittedly brief telephone conversation between the applicant and his solicitor at in or about 9.36 a.m. on 21st June, 2007. There was no evidence that his consultation by telephone with his solicitor was curtailed or limited by the Gardaí.
It was open to the learned trial judge on the evidence to form the view that the brief contact that the applicant had with his solicitor at or about 9.36 a.m. on the morning of 21st June, 2007, was sufficient, in the circumstances of the particular case, to cure the unconstitutionality of his detention for the remainder of that interview.
It is well established that the right of reasonable access to a solicitor is a constitutional right and a breach of that right renders the conditions of the suspect's detention unlawful and any admissions made during the period of unlawful detention are inadmissible in evidence - The People (Director of Public Prosecutions) v. Healy  2 I.R. 73. However, the unlawfulness of the period of detention subsists only for so long as the suspect is deprived of reasonable access to a solicitor; once the violation of that right is remedied, and the suspect is otherwise in lawful detention, there is no reason to regard his detention as unlawful or any confession as inadmissible - The People (Director of Public Prosecutions) v. 0 'Brien  2 IR 206.
In this case, the applicant had had access to the advice of his solicitor on two occasions by telephone on the day of his arrest. Thereafter, during an interview, he again sought access to a solicitor and this request was ignored. Consequently, the prosecution conceded, and the learned trial judge ruled, that the record of all interviews conducted during the period in which he was denied access to his solicitor could not be admitted in evidence. On the following morning, the applicant again obtained access to his solicitor by telephone. After the applicant had spoken with his solicitor, the member in charge inquired of him whether he was happy and he said that he was. Significantly, he made no request at this time for the interview then underway, and which had been interrupted, to be suspended, or for it not to resume, pending the arrival of his solicitor. Neither did he say that he had asked his solicitor to attend, or that his solicitor was on his way, or expected imminently (which in fact he was not). Moreover, at this point he neither said that he was in need of legal advice, nor that he wished to have legal advice. While the applicant did in a subsequent interview express a view that he expected a personal meeting with his solicitor, his evidence at the trial on this aspect of the matter was vague and equivocal. He was unsure whether he had actually asked his solicitor to come to visit him and he did not know whether his solicitor was at fault in not coming to visit him. He said he was not really complaining about the fact that his solicitor did not visit him, and would only say that he would have liked to see him. The Court considers that the fact that, at the commencement of the sixth interview, the applicant, having had a period of rest and reflection in his cell, made a request to see his solicitor, and expressed a wish to obtain legal advice before answering further questions is significant because it shows that he was well aware at all relevant stages that this was his entitlement.
Although the duration of the phone call to his solicitor was short, the applicant's counsel accepted that there was no suggestion that the call had been cut short by the gardaí. All the evidence suggests that, prior to making the admissions that were admitted in evidence, the applicant had obtained reasonable access to his solicitor with which he expressed himself to be satisfied at the time and about which he could not bring himself to complain subsequently.
In the circumstances this Court is satisfied that the learned trial judge's ruling that the unconstitutionality of the conditions of the applicant’s detention, resulting from the denial to him of reasonable access to a solicitor, was cured by the telephone conversation between the applicant and his solicitor at circa 9.36 a.m. on 21st June, 2007, and his decision to admit in evidence before the jury the balance of interview (e) (i.e the fifth interview) was a proper application of the law.
(ii) The alleged causative links issue
The Court considers that there is no evidence of a causative link, whether general or specific, between admissions made while the conditions of the applicant’s detention were unlawful and those made subsequently while they were lawful.
In effect, this Court has been invited to conclude that there was such a causative link based upon “human psychology” as it was put.The suggestion that such a link must exist is put forward as if it were a proposition so obvious that the Court should adopt it without any need for evidence, and as though judicial notice ought to be taken of it as being a fact not reasonably disputable on the basis of common sense and experience. This Court does not consider that this follows at all in the circumstances of this case. Each case must depend upon its own facts. In some cases a causative link may exist; in others it may not.
The applicant places some emphasis on the fact that the fifth interview commenced just after 08.24 a.m. on 21st June, 2007, with one of the interviewing gardaí stating: "Bryan, just in relation to what you told us about the shooting on the 27th of May 2007…." However, the introduction in question related to a very specific question only. The specific question was in terms:-
However, it must also be acknowledged in fairness that this question is then followed by a series of questions which undoubtedly do seek to clarify, or to elicit more detail concerning some matters that had been spoken of the previous day. In some instances the questioner expressly refers to something said previously, and in other instances the question manifestly assumes the existence of some fact to which there has been no previous reference in the interview then being conducted. Yet, this type of questioning does not persist for very long. The interview rapidly moves on to open questioning concerning aspects of the matter that have not been spoken of previously and, by the time the interview is interrupted at 09.36 a.m. for the purpose of allowing the applicant to speak to his solicitor, there are few, if any, references to matters spoken of previously. When the interview resumes after the applicant has spoken to his solicitor, (and it will be recalled that it is only statements from this point on that were admitted in evidence) the style of questioning is once again largely open, with only minor references to matters spoken of previously and the interview is focused substantially on matters in respect of which there is independent extrinsic evidence, such as telephone traffic, forensic findings and C.C.T.V. footage. To the extent that it contains references to matters spoken of previously, these matters would have been known to the gardaí in any event from other sources.
By way of example, the applicant is asked at one point:-
It is clear from Mr. Justice McCracken’s judgment in O’Brien (cited above) that what is to be deprecated is the use of material that has been wrongfully obtained in breach of the accused’s constitutional rights to obtain an inculpatory statement or admission. The “O’Brien test”, as the applicant characterises it, speaks of “the use of information” gained. The word “use” as deployed in the particular context connotes the positive or active sense of that word, namely the conscious employment of relevant unconstitutionally obtained information towards the achievement of a specific end, namely the obtaining of an inculpatory statement or admission (whether that be a new statement/admission or a reiterated statement/admission). This Court considers that for an inculpatory statement to be excluded on those grounds there must be clear evidence that the sole source of the material used to elicit that statement was the accused. The inculpatory statement must have been “obtained” exclusively by the use of the unlawfully sourced material. If material used to obtain an inculpatory statement is also available to the police from another, lawful, source then the police may legitimately use that material in questioning an accused notwithstanding that he may have spoken about it previously in the course of an unconstitutional interview. This Court does not consider that the learned trial judge misinterpreted O’Brien. It is clear from the judge’s ruling, and in particular where he says “there must be questions that can be identified as arising solely from answers made and not matters that were already in the possession of the Garda Síochána through other means”, that the learned trial judge was correctly focused on the issue of the manner of the use (if any) of relevant previous admissions in the course of later questioning.
Finally, in this Court’s view the learned trial judge’s decision not to rule out the three specific questions that were objected to, and the answers thereto, was correct and is unassailable. In no instance is there any direct reference to matters spoken of previously. The questions are manifestly fair and they do not seek to exploit knowledge that could only have been gained by unconstitutional action. Quite independent of the applicant, the garda interviewers had the benefit of the results of examinations conducted by forensic and scene of crime experts, the statements of other persons interviewed in the course of the investigation, and their general experience as police interrogators, to inform and prompt the particular line of questioning that they adopted in each instance. The Court is satisfied, in all the circumstances of the case, that the learned trial judge’s rulings were correct and that the gardaí did not unlawfully deploy matters spoken of previously by this applicant in any of the three specific matters to which objection is taken.
Right of Access to a Solicitor Generally
The evidence and the trial judge’s ruling on the voluntariness/minimum standards of fairness issuesDuring the voir dire the learned trial judge heard oral testimony from the interviewing gardaí and from the accused concerning what had occurred in the course of the interviewing process. While there was a stark conflict between prosecution and defence concerning how that process was to be characterised, there was and could be no substantial dispute concerning what factually occurred as the relevant transactions were recorded on videotape and the learned trial judge was afforded, and availed of, an opportunity of viewing the relevant videotape evidence.
Based on that evidence the applicant’s counsel advanced arguments at the trial concerning why the entirety of the admissions made during the course of the applicant’s detention on 20th and 21st June, 2007, should be excluded as being involuntary. He submitted, and the prosecution do not dispute, that the evidence revealed:
the applicant was told that unless he admitted to participating at some level in the incident, he would, notwithstanding his protestation that he was unaware that his passenger intended to kill somebody, be convicted of murder and imprisoned for 30 years;
it was suggested to the applicant on at least seven occasions that he could have been involved in the operation without necessarily having an intent to kill;
it was repeatedly suggested to the applicant that if he received a very lengthy prison sentence his partner would take up with another man and his daughter would be raised by such man;
it was suggested to the applicant that making no comment meant that he was guilty;
the gardaí raised their voices or shouted at the applicant on at least four occasions;
it was suggested to the applicant that if during the garda interviews he did not admit to involvement at a level less than that of murder, he would not be permitted to put forward a defence to that effect in a subsequent trial; and
it was suggested to the applicant that he was not entitled to legal advice while an interview was ongoing, and that the garda attitude was that just because he was asking for a solicitor did not mean he was necessarily going to see a solicitor. Moreover, his requests for a solicitor were not in fact acted upon.
Having heard counsels’ submissions, the learned trial judge then ruled as follows:-
The applicant’s submissions to this Court on the voluntariness/minimum standards of fairness issuesAlthough it is not expressed in these exact terms, the main thrust of the argument in this regard seems to be that the learned trial judge’s ruling was against the weight of the evidence.
The submission that all admissions should have been excluded is also ostensibly based upon a contention that the learned trial judge failed in the course of his ruling to address an argument presented to him by counsel that the admitted legal misrepresentation (i.e. wrongfully telling the applicant that unless he admitted while being interviewed in the garda station to having some involvement less than that of committing murder, it would be impossible for him to advance this by way of defence in court later on) amounted to an improper inducement in the context of the denial of a solicitor. Reliance was placed upon the following excerpt from McGrath, Evidence, (Dublin, 2005) at 400:-
It was further submitted that the issue of any dissipation of the effects of oppressive conduct could not properly arise in aid of the prosecution where the original confession was procured in immediate and direct response to the denial of access to a solicitor combined with such oppressive or unfair conduct. Moreover, it was submitted that the fact that the record of the interview ruled admissible was immediately followed by a repudiation and a request for a solicitor cannot be ignored. The argument in this regard seems be that even if the learned trial judge was of the view that the admissions were voluntary, he ought nonetheless to have excluded them on the basis that the entire interviewing process fell below minimum standards of fairness in the sense spoken of by Griffin J in The People v. Shaw  I.R. 1.
In the course of his Supreme Court judgment in Shaw, Griffin J. said, (at 61):-
The test of basic fairness, based on a due consideration of the rights of the accused coupled with the requirements, in the interests of the common good, of the prosecution, superimposed on the need for voluntariness, has the merit of ensuring, if the judicial discretion is correctly exercised, that an accused will not be wrongly or unfairly convicted out of his own mouth.”
DECISION on the voluntariness/minimum standards of fairness issuesIn reply to the applicant’s submission, the respondent has submitted that for a confession to be admitted in evidence it must be voluntary in the sense that it was not "coerced or otherwise induced or extracted without the true and free will of its maker" – per Griffin J. in The People v. Shaw  I.R. 1 at 60. Oppressive questioning, in the form of words adopted by the Court of Criminal Appeal in The People (D.P.P.) v. Bernard McNally (1981) 2 Frewen 43 at 53, "so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent". The respondent has submitted, and this Court agrees, that, measured by those standards, the admissibility of the interview admitted in evidence in this case cannot be questioned.
In this particular case, the evidence establishes that interview (e) (i.e the fifth interview) commenced while the applicant was continuing to be detained in unlawful conditions because of the denial to him of his constitutional right of reasonable access to a solicitor. It is also clear from the evidence that, in the course of interviewing the applicant on the previous day, the gardaí had engaged in an illegal strategy to try to get the applicant to make admissions by misrepresenting to him that if he did not say something in the garda station, it would be impossible for him to say it in court. However, the applicant had been afforded the facility of resting overnight, and the learned trial judge found, as he was entitled to do on the evidence before him, including a careful scrutiny of the videotapes of interviews, that if he had been suffering from oppression on the previous evening, there were no evidence on the morning of 21st June, 2007, that he was continuing to suffer from it. The trial judge’s view, which seems to have been one that was reasonably open to him on the available evidence, was that “the effects of the previous day's interrogation had dissipated and that his spirit was refreshed”. The learned trial judge specifically noted that the video showed him “as being relaxed and in jocular form and it is clear in the course of that interview that he was more than capable of choosing which questions he would answer and which questions he would not”.
This Court is not impressed with the argument based upon the learned trial judge’s alleged failure to consider the argument that the admitted legal misrepresentation amounted to an improper inducement in the context of the denial of a solicitor. The proffering of an improper inducement in the context of a police interview involves the interviewer holding out to, or engendering in, the interviewee some hope of advantage in exchange for the making of an inculpatory statement or the giving of inculpatory answers. The applicant himself gave evidence on the voir dire and at no stage did he even refer to this misrepresentation, much less contend that it caused him to harbour any hope of advantage or that it in any way influenced his decision to speak to the gardaí. The learned judge expressly alluded to this in his ruling. Moreover, he expressly stated “neither were any improper promises or inducements held out to the accused man”. It is clear that the learned judge did consider the issue as to whether there was any form of improper inducement and found there was none. That view was one that it was clearly open to him to arrive at on the evidence that was before him, and it is unassailable in our judgment.
Turning then to a consideration of the “Shaw” point and the issue of fairness in the round, there was clear evidence upon which the learned trial judge was entitled to rely on the fact that the applicant was in good form throughout the interview and was able to laugh and joke with the gardaí. His demeanor and the tenor of the interview was observed and remarked upon by the learned trial judge and counsel for the applicant agreed with his remarks. The applicant himself could say no more than that he was "mental1y worried". That worry could readily be explained in that he thought he would be kil1ed, and that threat was entirely unrelated to the conduct of the interviews.
It was also apparent to the learned trial judge that the applicant had shown a willingness to request access to a solicitor, including in the interview immediately fol1owing the one that was admitted. In those circumstances, whatever his complaints about the previous night, it was clear that the applicant was wil1ing and well able to deal fully with matters from his own perspective on the morning of 21st June, 2007.
This Court also notes that when the applicant was asked in the course of his evidence in chief on the voir dire if he felt he had a choice as to whether to make admissions on the 21st June, he initially said he did, although upon further questioning by his counsel he suggested otherwise. Similarly, when cross-examined about the suggestion that he had felt oppressed, he indicated that his concern was with the earlier interviews the previous night.
In assessing the applicant’s evidence on the voir dire, including his complaints that he was suffering from oppression during the portion of interview (e) (i.e. the fifth interview) that was admitted, the learned trial judge found him not to be a credible witness. In the Court’s view considerable weight must be given to this credibility assessment, particularly in circumstances where the applicant had sought to contradict what so readily appeared on the video of interview, i.e. that the applicant was in good form, in control of his own will, and freely and voluntarily made a confession as to his involvement, while exculpating himself insofar as he could by claiming not to have known a gun was present or that there was any plan to use it. All these matters were issues of fact which fell to be decided by the trial judge who had the opportunity to hear the applicant as a witness at the trial. It is clear from his rulings that he considered comprehensively all aspects of the evidence bearing on the fairness of the applicant’s detention and interviews. While he does not specifically refer to the Shaw case, this Court is satisfied that the comprehensive way in which he addressed the various issues raised, and in particular the decisiveness and clarity of his rulings on the issue of the accused’s access to legal advice, and the voluntariness of the admissions, respectively, demonstrates clearly that overall fairness was considered by him and that the learned trial judge satisfied himself that minimum standards of fairness pertained in all the circumstances of the case.
GROUP B – GROUNDS 7-9 INCLUSIVE
Grounds 7 – 9 inclusive may be summarised as follows. The applicant contends that the learned trial judge erred in fact and in law in refusing to make a finding that the applicant was entitled to some or all of the information and/or documents sought regarding the operation of the Witness Protection Programme in respect of the protected witness, Mr. Kevin Whelan. The applicant claims that as a result:
it was not possible for the reliability of the said witness to be assessed properly.
“the reliability of the said witness should be assessed in the light of the benefits which he received under the said Programme and that if the absence of information as to such benefits left a doubt in the minds of the jury, such should be resolved in favour of the applicant.”
The law as to the evidence of protected witnessesThe principles of law applicable to the evidence of protected witnesses is to be found in the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Gilligan  1.I.R. 107. In that case the accused came before the Special Criminal Court charged with the murder of a journalist, Ms Veronica Guerin, and other drugs and firearms related offences. At the trial, three witnesses (John Dunne, Charles Bowden and Russell Warren), who were accomplices and participants in a State witness protection programme, were called on behalf of the prosecution. The reliability and credibility of each of the three witnesses was challenged by the accused on a number of grounds, including that each of the men and their families were in the Witness Protection Programme as a consequence of which they were financially dependent on the State for their future. It was submitted that each man had tailored his evidence to please the authorities so as to obtain a better future for himself and his family. In addition, in relation to Bowden and Warren, it was suggested that they had been granted immunity from prosecution for the murder of Veronica Guerin as a favour in consideration of their agreeing to give evidence favourable to the prosecution.
The Special Criminal Court accepted that each of the three men were accomplices and that the evidence of Bowden and Warren was further compromised in circumstances where they had made formal statements to An Garda Síochána implicating the accused after they had unrecorded meetings with a detective and after monies previously seized had been returned to them by An Garda Síochána. In such circumstances, the Special Criminal Court acknowledged that it had grave reservations about the truthfulness of the evidence of Bowden and Warren. However, where their evidence was significantly corroborated, the Court was prepared to act on it. In relation to Dunne, while the Court accepted that it would be entitled to act on his evidence without corroboration, it indicated that it was not disposed to do so in the circumstances of the case. On the basis of the evidence, the accused was found guilty of the drugs charges but not guilty of the charge of murder or the firearms charges.
The accused appealed to the Court of Criminal Appeal and in doing so mounted an extensive challenge to the use of evidence in a trial from persons who were in a Witness Protection programme. The grounds advanced covered issues such as the compatibility generally of such evidence with the rights of an accused and with constitutional due process. An issue was also raised as to whether a direction to the jury concerning corroboration is required in respect of such evidence and, if so, in what circumstances. The Court of Criminal Appeal certified that its decision involved points of law of public importance.
The questions certified for an appeal in the Gilligan case were as follows:
Is corroboration in the sense described in R v. Baskerville  2 K.B. 658 required in respect of the testimony of accomplice witnesses who have participated in a state witness protection programme? If not, what is the appropriate test in relation to such witnesses?
As is evident from the judgment of Denham J. in that case, with whom the other members of the Court agreed, the issues addressed referred not only the directions which a trial judge gives to a jury in respect of a witness who was an accomplice but also decided how the jury should be directed concerning the evidence of witnesses who are not accomplices but who are nonetheless participating in a witness protection programme and all that may entail. Thus, the issues addressed and decided by the Supreme Court in that case included the principles of law applicable, firstly to the very nature of a witness protection programme so as to ensure that an accused’s right to a fair trial is not thereby compromised and, secondly, to the question of a warning to the jury concerning corroboration of the evidence of a witness participating in such a programme, even if such a witness is not an accomplice to the commission of a crime. This was as much a decision on the first question certified as on the second. The latter issue concerning corroboration is explicitly addressed at several points in the judgment the most relevant parts of which are cited in this judgment.
In her judgment in that case Denham J. (nem. diss.) stated (at 138 to 139) that:
“The rationale behind the common law rule requiring a warning before acting upon the uncorroborated evidence of an accomplice applies equally to the evidence of a person in, or who is going to join, a witness protection programme. There is a danger that the witness may not tell the truth in the hope of receiving benefits. In relation to the witness protection programme this applies also to expectations the witness may have into the future for him or herself and their family. Thus there is the danger that the witness may seek to obtain additional benefits by his or her evidence. There are dangers especially where there has been a grant of immunity and/or the prosecution has supported the giving of a light sentence. These and other factors may arise in relation to a witness in a witness protection programme.
I am satisfied that to ensure a fair trial the same approach should be taken to evidence given by a witness in a witness protection programme as to evidence given by an accomplice. Thus, ……, there is no rule of law to the effect that the uncorroborated evidence of a person in or going into a witness protection programme must be rejected. The rule should be that the trier of fact must clearly bear in mind and be warned that it is dangerous to convict on the evidence of such a witness unless it is corroborated; but having borne that in mind and having given due weight to the warning, if the evidence is none the less so clearly acceptable that the trier of fact is satisfied beyond reasonable doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of a witness in a witness protection programme is not present in the case, then the trier of fact may act upon the evidence and convict.”
Dealing with the issue of benefits Denham J said (at 144):-
Consequently there are good reasons why the evidence of a witness in a witness protection programme should be considered with caution by the courts. There may be the danger that the witness will fabricate evidence to his advantage. He may seek favour to improve his conditions by giving prejudicial evidence against other persons.
Denham J at page 151 to 152 of her judgment further emphasised that the testimony of a person in receipt of a benefit from the State, such as a witness protection programme, should be viewed with caution. She stated:-
Denham J, on the nature of such a programme, concluded (at 162):-
The non-disclosure issueThe information in issue was unsuccessfully first sought by the defence in correspondence with the Chief Prosecution Solicitor. The defence then sought to raise the issue by way of a pre-trial application in the Central Criminal Court. It was first raised before Carney J. on 30th July, 2008, essentially for the purpose of seeking leave to bring a pre-trial motion, which was granted, and the matter was then put in for 13th October, 2008. The pre-trial motion was heard on 13th October, 2008, but did not conclude on that day due to the non-availability of two state witnesses. It was adjourned to 16th October, when evidence was heard from Detective Chief Superintendent Pat Hogan who, having confirmed that Kevin Whelan had been received into the Witness Protection Programme, and having outlined in broad terms how that programme operates, then asserted a “public interest” privilege in respect of the details of the agreement or protocol entered into between An Garda Síochána and the protected witness. Although the Detective was unwilling to make the material in question available to counsel for the defence, he was willing to make it available to Carney J. who declined to view it “for the time being”. Carney J. then declined to make the order sought by the applicant’s counsel, ruling that “there will be cross-examination at the trial and it will be up to the learned trial judge to deal on a question-by-question basis with any claim of privilege which is made.”
The matter came on for trial before the learned trial judge on 20th November, 2008, and the application was renewed on day 2 of the trial. Detective Chief Superintendent Pat Hogan again gave evidence and again he asserted a claim of public interest privilege in respect of the relevant documents. On this occasion the learned trial judge received some documentation from the witness and considered it briefly before returning it to him.
The learned trial judge ruled on the application on the morning of day 3 of the trial (24th November, 2008) in the following terms:-
Judge: “ You were the one who raised the issue of a lump sum way before even I saw the protocol .”
Mr Ó Lideadha: “… I would not have asked that question if I didn't believe that your lordship had signalled that that was a question that might be appropriate for me to ask.” [Book 8, p. 38, line 7 et seq]
DECISION on the non-disclosure issueThis Court has carefully considered the evidence on this issue, as well as the learned trial judge’s ruling and the submissions of counsel. Having done so, the Court is satisfied that the ruling was consistent with the decision in DPP v. Gilligan and that an appropriate balance was struck by the learned trial judge between the need to protect the witness’s identity, as well as to maintain the integrity of the Witness Protection Programme on the one hand, and the need to ensure that defending counsel had access to information necessary to enable him to effectively cross-examine the protected witness with respect to any benefits or favours that he may have received, on the other hand. In this case counsel for the defence was afforded the time and the opportunity to cross-examine the witness in question and to ascertain what benefits he had received.
The Court does not consider that there is any real basis for counsel’s assertion that he had been misled by the trial judge regarding the possible payment of a lump sum to the witness in the Witness Protection Programme. It is clear that the trial judge was no more than explaining to counsel the range of matters which he was entitled to pursue with the witness if he saw fit. In any event insofar as there was ostensibly a misunderstanding between the learned trial judge and counsel for the applicant on this matter, and in particular with regard to the learned trial judge’s reference to a possible lump sum payment, the Court is satisfied that no adverse repercussions ensued from this for the defence. The suggestion that there was so is somewhat fanciful. The Court is satisfied that it must have been clear to the jury that counsel for the defence was doing no more than carefully checking out what benefits the protected witness might have obtained from participation in the Witness Protection Programme.
The adequacy of the protected witness warning to the juryThe learned trial judge made the following remarks, and gave the following warnings, in the course of charging the jury. He said:-
In the present instance you would have to be -- well, I am not saying,… and I shouldn't say that Mr Whelan was an accomplice but you have heard the evidence and it is for you to draw your own conclusions in relation to whether Mr Whelan was an entirely innocent man as regards this particular enterprise or whether he was in some way participating in it ………. . And if you are not satisfied beyond reasonable doubt that Kevin Whelan was not an accomplice then you should bear in mind my warning to you that it is dangerous to convict on the uncorroborated evidence of an accomplice. That is not to say that you cannot convict on the uncorroborated evidence of an accomplice, but you must have regard to the warning and to the fact that it is dangerous. And you have to look ….. and see is there independent testimony that tends to show not alone that the offence was committed but that the accused committed it … .” [Book 10, p. 48, line 25 to p. 49, line 11]
Now, Mr Whelan…. is currently on the Witness Protection Programme and that is something that you must give consideration to. People can be on the Witness Protection Programme who are completely innocent of any wrongdoing or any involvement in the crime or the trial, the trial of which they gave evidence, or they can be somebody who is knee-deep in it and you can have the situation…. where the Witness Programme is offered to somebody who has been, as I say, knee-deep or perhaps to a greater extent involved in the commission of an offence, and clearly they are accomplices. And they have an interest…. in giving certain evidence. You will recall that a number of years ago Veronica Guerin, a journalist, was shot and killed and a number of people were tried in respect of that offence. The prosecution case in all of the trials depended upon a man who, of his own admission, had prepared the gun for the killers. And having regard to the law of joint enterprise, he was as guilty as any of them for that act alone because he knew what was going on with that gun, but he was granted immunity from prosecution on the basis that he would testify against his fellow conspirators and you can see how he had an interest in giving evidence against them because he had been granted immunity from prosecution, he had a vested interest in the trial; "If I give evidence against them, then I am not going to be prosecuted. I have been granted immunity from prosecution because I am going to give evidence against them." And any person on the Witness Protection Programme certainly derives benefit from being on the Programme to a greater or lesser extent, but you can have somebody on the Programme who is as pure as the driven snow who has no involvement in the offence. If I was perhaps to observe a gangland killing and I was in a position to identify the individual involved or the vehicle involved or I was in a position to give some assistance to the Garda Síochána, then my life might be at risk and I could find myself on that programme for my own protection, not that I had any benefit to gain from giving evidence because I was not involved in the offence itself but a benefit would undoubtedly inure to me insofar as I would have a new identity, I would have a new life and I would have the Garda Síochána protecting me. I would also derive a financial benefit from it and you will recall that Mr Whelan was questioned about that and he readily conceded to Mr Ó’Lideadha, yes, there were certain financial benefits to him. He was getting an allowance, he was getting, I think it was his accommodation paid, his bills paid, his telephone paid, matters of that nature. He was asked about a car, if I recall correctly, and he said, no, he didn't have a car I think it was petrol that Mr Ó’Lideadha had asked him about. And so that is something to be borne in mind…. where does it enter the equation or does it enter into the equation as regards Mr Whelan and what effect, if any, does this have on the testimony he gave here? Did he give his testimony for the purposes of protecting himself, gaining a benefit or is he being a truthful credible witness who is telling you the truth? As I say, and you look to it, you look in particular to the question of was his own role in the matter more than he admitted to here, was he just somebody who was arrested and we had been told that he was arrested simply on the basis of possessing information but it does appear from the manner in which he was questioned or interrogated, from the excerpts that have been read, and from those interviews, by Mr Ó’Lideadha to him, the Garda Síochána were not necessarily approaching it on the basis that he just has information, but they were approaching on the basis that he might have a greater involvement in it. So, as I say, the question is: are you satisfied beyond reasonable doubt that he is not an accomplice? As I said, to couch it in the negative as I did, if you are not satisfied beyond reasonable doubt that he is not an accomplice then bear in mind my warning.” [Book 10, p. 55, line 16 to p. 57, line 17]
It is quite clear that counsel is correct in his understanding of the effect of the learned trial judge’s charge. There is no real issue concerning this. On the tenth day of the trial, before the jury were charged, counsel for the applicant urged upon the learned trial judge that he should give both an accomplice warning and a protected witness warning. While the learned trial judge accepted that an accomplice warning would be appropriate, he rejected counsel for the applicant’s submission to him that the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Gilligan required that a protected witness warning as regards corroboration should also be given, and stated it as being his view that the Supreme Court in Gilligan was dealing with a particular set of facts and was not dealing with the issue in general terms. He said:-
DECISION on the protected witness warning issueThe Court has carefully considered this issue and concludes that the learned trial judge was in error in his understanding of the Supreme Court’s judgment in The People (Director of Public Prosecutions) v. Gilligan  1. I.R.107.
As noted above, Denham J. stated (at p. 138 to 139):-
It is quite clear that this passage, and others cited above, were not intended to be confined in their application to those cases where witnesses on the Witness Protection Programme are also accomplices. To do so would be to ignore the possibility, which the Supreme Court in Gilligan did not do, that the reliability of the evidence of other persons, including the evidence of an “innocent man” to use the trial judge’s term, on the Witness Protection Programme might be influenced directly, or indirectly, by benefits received.
The nature of the warning to be given to a jury is, again as Denham J. pointed out, the same as the warning to be given in the case of an accomplice although obviously it must be explained to the jury the reasons why, in the particular circumstances of the case, there is a need for such a warning. It is important that they understand that. Thus in the case of an accomplice simpliciter there may be a danger that the witness is seeking credit for his evidence in order to enjoy immunity from prosecution or for the purpose of mitigating any punishment that might be imposed on him in the event of a conviction. In the case of the witness in a Witness Protection Programme a jury should be warned as to the desirability of corroboration because the witness might be motivated, in giving evidence, by the benefits to be received from that programme. Of course in either case the warning includes advice to the jury that if, even in the absence of corroboration and having exercised caution with regard to the matters referred to, it is satisfied beyond reasonable doubt as to the credibility of the evidence of any such witness, then it is entitled to rely on such evidence.
Accordingly, the evidence of protected witnesses is a category of potentially unreliable evidence in its own right, separate and distinct from the evidence of accomplices. While the evidence of a protected witness, and particularly an innocent protected witness, may well be reliable, both prudence and the interests of justice require that it be received with caution. The general nature and ambit of the caution to be given are set out in the judgment of Denham J. It is for these reasons that the same approach should be taken to evidence given by a witness in a witness protection programme as to evidence given by an accomplice. This is what the Supreme Court stated in Gilligan.
While the respondent has drawn the Court’s attention to certain remarks of Mr. Justice Geoghegan, giving the judgment of this Court in The People (Director of Public Prosecutions) v. Hinchon  IECCA 137, (Unreported, Court of Criminal Appeal, 20th October, 2006), to the effect that it is not necessary for a trial judge to distinguish in his charge to a jury between the nature of the warning required to be given in respect of accomplice evidence and that required in respect of evidence given under a witness protection scheme, these remarks do not assist with respect to the issue in the present case. Whilst it might have been open to the learned trial judge to give the same warning to the jury about the danger of relying on potentially unreliable evidence, (while explaining the specific reasons for that) whether that be the evidence of an accomplice or of a protected witness, without corroboration, the fact of the matter is that in this particular case he did not do so. Rather, he gave the jury an accomplice warning which they were to have regard to unless they were satisfied beyond reasonable doubt that the protected witness was not an accomplice. However, the corollary of that direction to the jury is that if they were satisfied beyond reasonable doubt that the protected witness was not an accomplice, they need not concern themselves with any warning concerning the desirability of corroboration. That is simply not correct, and yet the matter went to the jury on that basis. In fairness to the trial judge it should be noted that he did give express warning to the jury to exercise caution as regards Mr. Whelan’s evidence on the grounds that he was in receipt of benefits from the Witness Protection Programme. Crucially however, he did not give the warning concerning corroboration as specified by the Supreme Court in the Gilligan case.
It follows from what has just been stated that the learned trial judge misdirected himself in law in deciding not to give a protected witness warning concerning corroboration to the jury in addition to an accomplice warning. In the light of the decision in DPP v. Gilligan this fundamentally affected the manner in which the jury deliberated on the evidence and leads inevitably to the conclusion that the verdict of the jury cannot be considered as safe. Accordingly the appeal will be allowed on this ground.
GROUP C_-_GROUNDS 11 & 12 INCLUSIVE
The complaints under this heading are that the trial was unsatisfactory and the verdict is unsafe because the learned trial judge did not direct the jury as to the basis on which a verdict of manslaughter could be returned.
The defence made it clear from the outset that manslaughter could be an issue in the trial. Further, in advance of the closing speeches, the learned trial judge heard submissions on the question of whether the offence of manslaughter should be considered by the jury as an alternative verdict to the offence of murder. Counsel for the applicant argued that manslaughter should be left to the jury because the jury could find that the applicant did not know of any intention of his pillion passenger to kill or cause serious injury. He suggested the jury could find that although the applicant knew that his passenger had a gun, he may have believed that it was not intended to be used to kill or cause serious injury to someone. Instead the applicant may have believed that the gun would only be used to scare a person or to cause damage to property. The only evidential basis for counsel’s proposition was that the applicant had said in the part of interview (e) (i.e. the fifth interview), which was admitted in evidence, that he did not think that anything was going to happen, and that he thought “your man was going to just run up to the door and frighten them”.
The learned judge did charge the jury on manslaughter as a matter of legal theory but indicated that murder “is not seriously in issue in this case” and, according to counsel for the applicant, implied that manslaughter was in effect a non-issue in the trial.
At the end of the judge’s charge, counsel for the applicant raised a requisition expressly seeking that the alternative verdict of manslaughter should be left to the jury on the basis that “ if the jury were to come to the conclusion beyond reasonable doubt that Mr Ryan knew that a gun was going to be used, but if they have a doubt on whether or not there was an intention to cause injury with the gun and they find there was a reasonable possibility that the intention was to frighten or to fire against property rather than injure a person, then that would be a basis upon which they could return a manslaughter verdict.”
The learned trial judge responded: “It seems to me, Mr Ó’Lideadha, that it is all duck or no dinner on your client's account. It is either murder or it is nothing in relation to the actual offence.” In those circumstances the requisition was refused.
Counsel for the applicant relies upon the judgment of this Court in The People (Director of Public Prosecutions) v. Hanley, (Ex tempore, Unreported, Court of Criminal Appeal, 5th November, 1999), as well as on the judgment of the Supreme Court in The People (Director of Public Prosecutions) v. Cronin (No.2)  4 IR 329, in support of his contention that the issue should have been allowed to go to the jury.
Giving judgment of this Court in Hanley, Barrington J said:-
In Cronin the Supreme Court repeated that alternative defences must be put to a jury if there is an adequate evidential basis for doing so. In giving his judgment as one member of the five judge Supreme Court in that case, Kearns J, said (at p. 352):-
The case against the applicant in this appeal was one of joint enterprise with the person who fired the gun which killed the victim. The case was not that the applicant shot the victim but that he knowingly drove the person who did so to the house for that purpose. Counsel for the applicant sought to have the question of manslaughter left to the jury on the basis that it would be open to them to conclude that the applicant only drove him to the scene for the purpose of the victim being frightened and not for the purpose of shooting anyone or causing injury. That was the nature of the joint enterprise upon which counsel claimed it was open to the jury to find a verdict of manslaughter instead of murder. The learned trial judge in his charge had correctly pointed out to the jury “ … the prosecution case is that he was engaged upon a joint enterprise with the killer …He is responsible for the actions of his fellow participant or participants providing the act or actions of his fellow participant or participants falls within the scope of the enterprise but he is never responsible for any conduct or action that exceeds the joint enterprise.” If, on the evidence before it, the jury reached the conclusion concerning the involvement of the applicant contended for by his counsel in this context, then an ultimate decision by the other party to kill or cause serious injury to the victim would not entitle the jury to convict him of either murder or manslaughter. Such actions by the other party would have, in those particular circumstances, fallen outside the scope of the joint enterprise. In all the circumstances of the case the Court is satisfied, that in spite of the assertions of counsel for the applicant, there was neither a legal or evidential basis on which to invite the jury to bring in a verdict of manslaughter as an alternative to a verdict of guilty of murder. As the learned trial judge put it “It was all duck or no dinner”. Juries should only be asked to decide issues for which there is a real basis in law having regard to the evidence before them.