The Gazette 1980

GAZETTE

SEPTEMBER 1980

Continued from page 173 serve the public interest in the circumstances. This court cannot agree with this view. There are no circumstances in this case which can excuse what took place, and it would ill-serve respect of the Constitution and the laws, if this court, by allowing evidence so obtained, were to indicate to citizens generally of the obligation on the State to safeguard and vindicate constitutional rights, could in the circumstances of a criminal investigation be dispensed with or eased." The Rule in O'Brien's Case Under the rule in O'Brien's case if the invasion of constitutional rights has been inadvertent the court is not obliged to exclude the evidence. As the infringement of constitutional right always amounts also to an illegality the Court, of course, has a discretion to exclude it. However, the burden of proving that the infringement of the accused constitutional rights was not deliberate, and the evidence accordingly merely illegal, rest with the prosecution. This is a strict principle and its operation well illustrated by the great case of People v. Bartholomew Madden 11977] I.R. 337. The accused had been arrested under Section 30 of the Offences Against the State Act, 1939, at 7.15 a.m. on the 19th June, 1975, to be questioned concerning the murder of one, Laurence White, killed by a burst of machine-gun fire on a public road in Cork. TTie usual period of 24 hours detention was extended to 48 hours in the correct manner. He therefore should have been released or charged on the 21st June, at 7.15 a.m., at the latest. At 6.40 on that day Bartholomew Madden began to make an incriminating statement. He completed the statement at 10.30 a.m. when he was told he could go home. The statement was admitted and Madden convicted as an accessory to murder. The judg- ment of the Court of Criminal Appeal was given by O'Higgins C.J. On the facts, from 7.15 a.m. to 10.30 a.m. Madden had been deprived of his liberty otherwise than in accordance with the law. The next question was whether the invasion of a citizen's rights had been deliberate. The Chief Justice emphasised that the burden of proving inadvertance was on the prosecution. On examination of the trial transcript it was found the Madden was detained although the Gardai knew that the period of lawful detention had elapsed. The fact that they thought that the period had been extended by the accused's voluntary statement was discounted by the court. The duty of the servants of the State is primarily to vindicate the right of the citizen; the taking of the statement was secondary: "As matters stand, this statement was taken by a senior Garda officer who must have been aware of the lawful period of detention which applied in the defendant's case and in circumstances which suggested that he deliberately and consciously regarded the taking of the statement as being of more importance than according the Defendant his right to liberty, should he, the defendant, desire to exercise his rights.... By reason of the fact that it may have been taken under circumstances which involved a deliberate and conscious breach of the defendant's constitutional rights the statement ought to have been excluded."

excluded. Thus Higgins C.J. further stated that no element of willfulness or male Jides is required of the servant of the state to bring the invasion of the citizen's rights within the rule in O'Brien's case, he said: "What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interest of the due investigation of crime. It was, however, done or permitted without regard to the right of liberty guaranteed to this defendant by Article 40 of the Constitution and to the State's obligation under that article to vindicate this right. This lack of regard for and failure to vindicate the defendant's constitutional right may not have induced or brought about the making of the statement but was the dominating circumstances surrounding its making." As the Chief Justice and Walsh J. had earlier said, if the State would not vindicate the citizen's rights then it fell on the court to do so by the only means available to it, exclusion of evidence so obtained. It has now been finally settled by the case of People v. Raymond Walsh (Supreme Ct. 17/1/80, unreported) that the fact that the police officer, infringing the accused's constitutional rights does not know that his action is illegal or unconstitutional does not make the infringement of the accused's rights inadvertent and so allow the evidence to be admitted at the trial judge's discretion. This inadvertence within the rule relates specifically to fact and not to law This over-rules the earlier decision of Costello, J. in People v. Shaw (C.C.A. 22 / 5 / 79 unreported). Walsh's case also decides that an arrest which is unlawful by reason of the accused's not having been told the reason for his arrest can later be validated by that information being supplied. The raison d'etre of the rule in O'Brien's case in this country based on the doctrine of the fruits of the poison tree enunciated by the United States Supreme Court in Weeks v. U.S., are one and the same; to allow in fact a flaunting of the natural and constitutional right of the citizen is to encourage the kind of society obnoxious to free men. It is submitted that under no circumstances should a lack of knowledge of the law or Constitution provide an excuse for illegal action. The Discretionary Principle There are three circumstances in which evidence obtained in breach of a citizen's constitutional rights does not fall within the rule in O'Brien's case but falls to be dealt with by the discretionary principle. In this respect the Irish law seems to be borrowed from the rule in Week's case and Walsh J. in his judgment in O'Brien's case adopted the exceptions thereto. (1) Evidence obtained in breach of the constitutional right of a third party may be used against an accused. This is so because, as Walsh J. said, the primary function of the courts under the Constitution is the vindication of the constitutional rights of the citizen. The courts will vindicate the breach of the rights of the accused by the State by refusing to allow the State to use any evidence obtained as a result against him. It would be futile to vindicate the constitutional rights of a party other than an accused by refusing to admit otherwise admissible evidence against an accused whose rights have not been infringed, thereby perhaps saving him from a conviction and punishment in which the third party also had an interest under the Constitution. The Courts will vindicate 175

Accordingly, where there is not evidence that an invasion of the citizen's rights is inadvertent the evidence must be