The Gazette 1980

SEPTEMBER 1980

GAZETTE

(Continued from p. 171) unless the prosecution prove extraordinary excusing circumstances for the breach or prove that the breach itself was inadvertent. In O'Brien's case as it was clear from the evidence that since the Gardai never noticed that the address on the warrant was incorrect and the warrant accordingly useless, the evidence could not be excluded simply because, in fact, the accused's right to the inviolability of their dwelling under article 40 had been violated. The absolute nature of the exclusionary rule for unconstitutionally obtained evidence means that the slightest infringement of a constitutional right is sufficient to render a statement inadmissible. No considerations arise, or should arise, as to the nature of the breach and the value of the evidence thereby excluded in relation to the seriousness of the crime, as they arise in the Irish approach to illegally obtained evidence. Thus the merest oversight or technical flaw will exclude evidence which would otherwise be sufficient to convict an accused of serious crime. Where the oversight or technical flaw amounts merely to an illegality the judge would probably exercise his discretion in favour of admitting the evidence, especially where the charge is a serious one. This is not possible in relation to unconstitutionally obtained evidence. Thus in People v. Farrell 119781 I.R.13. the accused was convicted in the Central Criminal Court of causing an explosion c on t r a ry to the Explosive Substances Act, 1883, and the conviction was based on an admission obtained by the police during an extended period of detention under Section 30 of the Offences Against the State Act, 1939. That section gives the Gardai power to arrest, detain and interrogate for 24 hours any person they believe to have committed or intends to commit or has information in relation to the commission or intended commission of any offence under the Act or Schedule 5 thereof. The period of detention may be extended for a further 24 hours if a Garda not below the rank of Chief Superintendent or Superinten- dent, authorised in writing by the Commissioner, so directs. All the incriminating statements made by the accused were made after the expiry of the first 24 hours of detention. The purported extension of the detention was made by a Superintendent who was not proven to have authority f r om the Commissioner to extend that detention. The accused had been deprived of his liberty and that deprivation of liberty had not been in accord- ance with the law. No evidence had been adduced that the failure to extend correctly had been an oversight and so bring the evidence outside the rule in O'Brien's case and accordingly the court could deal with the matter under their Legal Evidence Rule and so exercise a discretion. In fact the only flaw in the evidence in this case was that no evidence had been adduced by the prosecution that the Superintendent who extended the period of detention into the second day had been authorised by the Garda Commissioner, the Supreme Court refused to presume that he had been so authorised. O'Higgins, C.J. in giving the judgment of the court said: "Mr. Landy submitted that the maxim omnia pre- sumuntur or rite esse acta applied. In other words he submitted that the court ought to presume that any- thing which ought to have been done was done, and that the Superintendent was acting regularly and properly. I do not think that the presumption mentioned in the maxim could have any application

in a case of this nature. It might well be that under such a maxim the Court might assume that the Superintendent had been regularly appointed as such, and indeed, possible in relation to the exercise of the normal powers and functions of a Superintendent who is acting properly and regularly. However, here we are concerned with the power not normally given to a Superintendent and which, for its exercise by a Superintendent requires a special authorisation designated by the legislature. No court in relation to a penal statute could apply any such presumption in a matter of this kind. Certainly this court will not do so." Some breaches of the constitutional rights of the accused would be more serious. In People v. O'Loughlin (unreported 11/13/78 CCA) the accused voluntarily accompanied Gardai to a Garda station after having been accused of stealing a muck spreader. In the station his explanation that he had bought the muck spreader was checked and found to be incorrect. Instead of being arrested, charged, released or brought before a Peace Commissioner he was held in custody, in order that he might be questioned about "cattle rustling". He was never arrested or charged with this second offence. While being questioned about cattle rustling he made a full statement about the muck spreader; he was then charged and formally taken into custody. He had already been in informal custody for 13 hours. O'Higgins C.J. in deliver- ing the judgment of the Court of Criminal Appeal was of the opinion that the detention could be divided into two periods. The first, from the time the accused came into the charge of the Gardai to the time the Gardai discovered that his first statement in relation to the muck spreader was incorrect, was not a deprivation of liberty as the accused had been in the station voluntarily. There is how- ever authority for the proposition that a person who voluntarily accompanies another in order to answer a charge of felony is falsely imprisoned if that charge later turns out to be unfounded; c.f. Peters v. Stanway 6 Car. & P. 738. From that point on the accused was not in custody voluntarily and would have been arrested if he had tried to leave. Yet the accused had not been deprived of his liberty in accordance with the law as he had never been arrested and consequently could not have been accorded his right to bail. Following Dunne v. Clinton [1930] I.R. 336 O'Higgins C.J. reaffirmed t ha t - " ho l d i ng for questioning, taking into custody or detaining are merely different ways of describing the act of depriving a man of his liberties. To do such without lawful authority is in open defiance of Article 40.4 of the Constitution." The Chief Justice went on to hold that as a result of the unlawful detention the accused had made the incrimina- tory statements. On the facts no submissions that the deprivation of liberty was inadvertent could be sustained. The statements were accordingly excluded. The Chief Justice then went on to affirm that no discretion vested in the Trial Judge in admitting evidence obtain in breach of the rule in O'Brien's case and stated that there were no extraordinary excusing circumstances which could justify the invasion of the accused's rights in this particular case: "The Trial Judge, even on the basis of there having been a deliberate and conscious violation of the constitutional rights was prepared to exercise his discretion in favour of admitting the statement. He was prepared to do so because in his view it would (Continued on page 175) 173