The Gazette 1980

GAZETTE

SEPTEMBER 1980

People v. John Shaw In People r. John Shaw (unreported) 22/5/79 CCA, the accused and one Jeffrey Evans were taken into custody for questioning on Sunday the 26th September 1977, at 11.30 p.m. The detention was illegal. The accused was not brought before the District Court sitting at 10.30 a.m. on Monday, nor was he arrested or charged. Evans however was validly arrested as being in possession of a stolen motor car. While in custody the Gardai noticed that the description of the two men tallied with those of two persons wanted in connection with the disappearance of one Elizabeth Plunkett who had last been seen at Brittas Bay in County Wicklow on 28th August 1 976. Superintendent Reynolds who was in charge of that case, arrived at the station on Monday morning and began to interrogate the men who by this time had been lawfully arrested for stealing a car. The circum- stances of the disappearance of Elizabeth Plunkett had led Superintendent Reynolds to believe that the same men had been implicated with the disappearance of another girl, Mary Duffy, who was last seen in Castlebar on the 22nd of September 1976. The Superintendent considered that there was a good chance that this girl, Mary Duffy, was still alive and in the circumstances that it might be vital to discover her whereabouts as soon as possible. For most of Monday Shaw was questioned on this. He said nothing. On Tuesday, at 4 a.m., he made a complete confession of abduction, rape and murder. Shaw then promised to show the Garda, places around Conne mara where these crimes and the later burial of Mary Duffy had occurred. He rested in his cell until 1.30 p.m. on Tuesday when he went in a car with the Gardai to whom he showed the places where Mary Duffy had been murdered and where her clothing had been burned and finally to Lough Inagh where he had disposed of her body. On Wednesday morning he was brought before the District Court on these charges. The Trial Judge, Costello J., found that the paramount concern of the Gardai from the time they discovered Shaw's implication in the disappearance of Mary Duffy, was to save her life and that they had grounds for believ- ing she was still alive. These grounds arose in part from the statement of Jeffrey Evans that the other girl, Elizabeth Plunkett, had been kept alive when in custody for some time after her abduction. He further found that this position did not materially change after Shaw's confession to her murder on Tuesday. Shaw was mentally disturbed, he had clearly implicated himself with Mary Duffy's disappearance but could easily have been lying about her death. Accordingly the Gardai were right to be more concerned for her life than with charging Shaw and affording him his rights to bail. The learned Trial Judge held that the paramount and primary purpose of Shaw's detention was to save the life of Mary Duffy whom the Gardai reasonably believed to be in peril. The evidence was accordingly admitted. On appeal to the Court of Criminal Appeal McMahon J. affirmed these findings of fact. He held that extra- ordinary excusing circumstances existed within the ruling of O'Brien's case. However the learned Judge held that the admissible evidence obtained as a result of the invasion of the accused's personal rights was confined to the evidence, the discovery of which was required by the extraordinary excusing circumstances and that no other evidence obtained in breach of the accused's rights could

be admitted. McMahon J. termed this evidence "target evidence", and said "this restriction of the admissible evidence appears to follow logically and the fact which rendered it admissible and evidence which is extraneous to the purpose ought to be inadmissible". Accordingly Shaw's admissions as to the whereabouts of Mary Duffy were admitted but evidence as to her death which had not been part of the target evidence of the extraordinary excusing circumstances could not be admitted. Conclusion In conclusion it must be said that the Irish law on this topic is wholly logical and not easily criticized. It is also an advantage that the law can be stated with precision and certainty, the judgments referred to above being admirably clear. The principle which gives a Trial Judge a discretion over illegally obtained evidence seems the best solution between the position in English law and a rule of absolute exclusion. It must be remembered that the Constitution gives every citizen on a criminal charge the right to a trial in due course of law. This, as explained by Gannon J. in State (Healy) v. Donoghue [1976] I .R., 325 implies that above all else that the rules governing the conduct of the trial should be fair. There may be circumstances in which the absence of a discretion to ex- clude evidence illegally obtained would result in unfairness. Kingsmill-Moore J. in O'Brien's case instanced evidence obtained from a person by violence to his wife. In these circumstances if no discretion is vested in the Trial Judge it is not hard to conceive that a conviction obtained as a result would be held not to have been in due course of law. The existence of this discretion over illegally obtained evidence is important in the context of the law on unconstitutionally obtained evidence. As the Trial Judge who cannot exclude unconstitutionally obtained evidence, because it falls ithin one of the exceptions in O'Brien's case or is admitted within the rule, has then a discretion over the evidence, an invasion of any citizen's rights being always illegal. It must be said that the absolute rule of exclusion for unconstitutionally obtained evidence as formulated by O'Brien's case and explained by Madden's case and Shaw's case is framed only as widely as Article 40.2 requires; the three exceptions outlined above clearly limiting it to the express words of that Article. The circumstances rendering evidence obtained in breach of the rule admissible as regards inadvertence in Madden's case, or excusing circumstances, in Shaw's case, are scrupulously fair in placing the burden of proving inadvertence on the prosecution and limiting the admissibility of evidence necessitated by extraordinary excusing circumstances to the target of those excusing circumstances. The two rules outlined above taken together constitute a further check on the action of an unscrupulous Government against the rights of a citizen. It has been said that nothing brings own a Government faster than failure to observe its own laws. Be that as it may, though a Government in this country collapse, the Rule in O'Brien's case, by protecting the citizen from high-handed governmental action in ensuring that no citizen was convicted by evidence obtained by that Government in breach of those citizen's rights the Government has been charged by the people to vindicate, may ensure that other edifices under the Constitution will remain intact. (Concluded)

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