The People (Director of Public Prosecutions) (respondent) v Suzanne Reddan and Deborah Hannon (applicants).
Criminal Law - Arrest - Interrogation - Violation of Judge's Rules - Subsequent statement taken in compliance with rules - Whether statement admissible - Search warrant - Source of information grounding warrant - Whether claim of privilege sustainable in respect of source - Unlawful killing - Killing not denied by accused - Whether defence of flawed intent available to accused.
The Court of Criminal Appeal (before Mr Justice Blayney, Mr Justice Flood, Mr Justice Kinlen); judgment delivered 4 December 1995.
AN earlier failure to observe the Judge's Rules will not render inadmissible into evidence a subsequent statement taken in compliance with the rules. Further a failure to terminate an interview of a suspect within the time laid down by statutory instrument will not of itself render a statement inadmissible. Generally a member of the Garda Siochana may not claim privilege over the source of his information where such information derives from another member of the gardai. In exceptional circumstances, however, such as the possibility of a threat to a member of the public, a claim of privilege may be sustained.
In a case of unlawful killing where the actual killing is not denied, the only defences available to an accused are those of provocation and insanity. There is no defence in law of a flawed intent.
The Court of Criminal Appeal so held in refusing the applicants leave to appeal their convictions for murder.
Paul O'Higgins SC and Eamonn Leahy BL for the respondent; Patrick MacEntee SC and Isobel Kennedy BL for the first applicant, Michael Feehan SC and Martin Collins BL for the second applicant.
MR JUSTICE BLAYNEY, delivering the judgment of the court, said that the applicants had been convicted of the murder of one Tracey Butler and, having been refused leave to appeal against conviction, now applied to the Court of Criminal Appeal for such leave.
Outlining the facts of the case, Mr Justice Blayney said that for some time there had been a dispute between the Butler family and the Hannon family and that the father of the second applicant, who was also the partner of the first applicant, had died as a result of an assault on him by Tracey Butler and two other members of her family. The applicants resolved to kill one of the three Butlers in response to that attack and, in due course, Tracey Butler died as a result of an assault by the applicants armed with knives; she suffered forty nine wounds of which fourteen were stab wounds. This information was evident from statements made by the applicants.
In addition evidence had been given at the trial of the applicants, by the second applicant's mother, that, on the night of the murder, the applicants had come to her house with bloodstains on, their hands and that they had put their clothes and a knife into a plastic bag. The second applicant's sister had said that the applicants told her that they had stabbed Tracey Butler. Mr Justice Blayney said that it was submitted, on behalf of the first applicant, that this appeal was limited to whether the question of manslaughter had adequately been left to the jury and to the contention that a re trial ought to be allowed on this issue. In addition, in the view of the court, the first applicants appeal concerned whether her statement should have been admitted in evidence.
The first ground of appeal centred on three issues, viz., whether the applicant was denied access to a solicitor, whether her detention was lawful in that she had been arrested pursuant to section 18 of the Offences against the Person Act 1861, rather than for murder, and whether the Judge's Rules had been violated.
In the view of the court, there was evidence that the first applicant was adequately advised of her constitutional entitlement to a solicitor; in addition, the facts justified an arrest under the 1861 Act and, in any event, the first applicant had said in evidence that she knew she had been arrested in connection with the fatal stabbing. As far as a violation of the Judge's Rules was concerned, the court accepted that there had been a failure to keep a contemporaneous note of the initial interview with the first applicant. This, however, did not render inadmissible the statement which she subsequently made and which had been taken in compliance with the Judge's, Rules.
Mr Justice Blayney said that the first applicant's next ground of appeal concerned whether her questioning had been oppressive (in light of regulation 12(4) of the Criminal Justice Act (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, which provided that if and interview has lasted for four hours, it shall be either terminated or adjourned for a reasonable time." The evidence indicated that the first applicant had expressly declined to avail of an offer to adjourn the interview after four hours. In the view of the court, under the terms of the regulation, the interview should, nonetheless, have been interrupted; this failure, however, did not of itself render the applicant's statement inadmissible.
The first applicant's next submission related to the trial judge's charge to the jury on the question of intent. It was contended that a person's intent may be flawed, that a defendant is entitled to call medical evidence to this effect and that the question of whether this is so is one that should be left to the jury. Noting that no authority had been cited in support of this proposition, Mr Justice Blayney said that, in a case of unlawful killing, the only defences available are provocation (which would reduce the offence to manslaughter) and insanity; in the circumstances, the court was satisfied that the defence of flawed intent did not exist in law.
The final submission made for the first applicant was that the trial was unsatisfactory in that, the period of deliberation of the jury was oppressive to the jury and to the accused. The court was referred to The People v Eamonn Kelly (unreported, Court of Criminal Appeal, 9 February 1994) and the The People v Sean Courtney (unreported, Court of Criminal Appeal, 21 July 1994) in support of this contention. Mr Justice Blayney said that, in the instant cast, the jury deliberated for a total of six and one half hours and were told after three that they were entitled to bring in a majority verdict. After a total of six hours, they were told that they were entitled to tell the court that they had disagreed. Mr Justice Blayney said that these facts did not constitute oppression.
Turning to the case of the second applicant, Mr Justice Blayney said that her first ground of appeal was that the trial judge had erred in law in admitting her statements. It was submitted that her arrest, under section 4 of the Criminal Justice Act 1984, was irregular in that the section did not allow her detention solely for the purposes of questioning. It was further argued that a claim of privilege regarding the source of the information which led to the issue of a search warrant should not have been allowed and that there had been a failure on the part of the gardai to obtain a solicitor for the applicant.
With respect to the claim of privilege, Mr Justice Blayney referred to the decision of the Court of Criminal Appeal in The People v Eccles, McPhilips and McShane, 3 Frewen 36. That decision indicated that, in exceptional circumstances, a member of An Garda Siochana could claim privilege over information received from another member of the force. Mr Justice Blayney said that the circumstances in this case were exceptional in that had the source of information been revealed a civilian contact of a member of the gardai could have been endangered. It followed, therefore, that the issue of a search warrant was justified as was the arrest of the second applicant.
In addition, the court noted that section 4 of the Act of 1984 permits the detention of arrested persons so that the offence for which they have been arrested may be properly investigated. The questioning of a suspect was a valid means of investigation and, accordingly, the applicant's detention was also in order in this respect.
On this ground of appeal, the court noted, in conclusion, that under the 1987 Regulations a Garda Siochana had no absolute duty to provide the applicant with a solicitor rather they were obliged to inform her of her right to one. Mr Justice Blayney was satisfied that this had been done and, indeed, that telephone calls had been made, at the applicant's request, to try and get a solicitor for her.
The second applicant's second ground of appeal contended that the jury ought to have been discharged once it had learnt that she had been in prison because this was indicative that she had previous convictions. Mr Justice Blayney said that the court accepted that the jury should not have been made aware of this as it was prejudicial and of no probative value. The disclosure, however, had not led to a miscarriage of justice because all the facts of the case showed clear evidence of the applicant's guilt. Therefore, in exercise of its discretion under section 3(1)(a) of the Criminal Procedure Act 1993, the court would not direct a retrial.
Solicitors: Chief State Solicitor for the respondent; Shaun Elder (Limerick) for the first applicant; Ted McCarthy (Limerick) for the second applicant.
