The Gazette 1980

GAZETTE

NOVEMBER 1980

his part to answer them, and deprives the statement of that voluntary character which is essential to its admissibility". Ibid., p. 90. The reason behind this judicial hostility to police interrogation may be partially explained on the basis that at one time the questioning of accused persons was carried out by magistrates. 25. See Note 3. 26. Commissioners of Custom and Excise v. Harz [ 1967] 1 A.C. 760 at p. 820. 1 27. Recent Irish decisions reflect an uncompromising attitude on the part of judges in their insistence that the trial of an accused be conducted in accordance with the constitutionally prescribed mandate of justice. In fulfilment of this constitutional directive the accused has been invested with an impressive array of constitutional rights. In The State (Healy) v. Donoghue [1976] I.R. 325 the concept of justice inhering in the Constitution implied the existence of the following rights: that the accused has a natural right to be informed of the nature and substance of the accusation, to have the matter tried by an impartial and independent court, to hear and test by examination the evidence by or on behalf of the accused and to be allowed to give or call evidence in his defence, to be heard in argument or submission before judgment is given, (per Gannon, J. at pp. 335-336). 28. 2 Hawkins P. C. at 604, 2nd Ed. Cited in People (A.G.) v. Galvin [ 1964] I.R. 325 and mentioned with approval by Lefroy, C. J. in Queen v. Johnston (1865) 15 IR. C. L. R. 60. This line of thought behind the rejection of confessions is recognized by Lord Reid in Commissioner of Customs and Excise v. Harz [1967] 1 A. C. 760 in the form of the maxim memo tenetur seipsum prodere (at p. 820). 29. See 11th Report, Criminal Law Revision Committee on Evidence, Cmnd. 4991, p. 35. This reason for exclusion is referred to in the Report on the "disciplinary principle". This principle was referred to by Browne, L. J. in D.P.P. v. Ping Lin [1976]. A.C. 574 at p. 584. 30. People (A.G.) v. McCabe [1927] I.R. 129 at p. 134. 31. Pigot C. B. pointed to the dangers attending the practice of interrogation. The danger to be guarded against is that statements may be made which are not consistent with truth in order to escape from the pressure of the moment. Referring to the interrogation of a prisoner detained in custody Pigot C. B. observed: "A prisoner so circumstanced may not hear, in terms, one word of hope held out or of mischief threatened, and yet he may and in many cases must, be actuated by hope that his answers will lead to his liberation, or fear that his answers may cause his detention in custody. He is placed in immediate contact with one who for the time is his gaoler, for the most part with no third person present to witness what passes, and almost always without the presence of any person to whom he can appeal for protection, or who may control the examination within fair or reasonable bounds. Manner may menace and cause fear as much as words. Manner may insinuate hope as well as verbal assurances. The very act of questioning is in itself an indication that the questioner will or may liberate the answerer if the answers are satisfactory, or detain him if they are not", (ibid, at p. 122). 32. Rule 3 of the Judges' Rules requires that persons in custody ^ should not be questioned without a caution being administered. ^ 33. The Report of the Committee to recommend certain safe- guards for persons in custody and for members of a Garda Siochana (the O'Briain Report) 1978 recommended certain safeguards with respect to the detention and interrogation of suspects e.g. that arrested persons brought into custody for questioning be assigned a "custodial guardian", that interrogation take place in a non-intimidatory environ- ment, and that a reasonable time should be allowed elapses for the attendance of a solicitor. See pp. 15-18. 34. In Culombe v. Connecticut 6 L. Ed. 2d 1037, Justice Frank- furter observed that "The notion of voluntariness is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes", (at p. 1059).

overseas tour having previously played in the West Indies, Hong Kong, The United States and England. The Law Society was able to turn out a reasonably strong side of Dublin League cricketers captained by David Pigot who has been capped for Ireland on a number of occasions. In spite of having the services of Gerry Kirwan of Clontarf who was the leader in the Senior League bowling averages in Dublin in 1980, the Law Society team's attack proved inadequate to contain the Australians, who amassed a total of 181 for 7 wickets in their allotted 45 overs. The Law Society's innings got off to a promising start and largely due to the contributions of the Phoenix pair David Pigot and David Ensor seemed to be going nicely when they reached 120 for the loss of 4 wickets. Unfortunately the middle order batting failed and in spite of resistance from the tailenders the innings ended 25 runs short of the target. The visiting party were entertained at a reception at Blackhall Place later in the evening.

Law Society XI v. Australian Lawyers XI Played at Castle Avenue, Dublin on 2nd September, 1980

AUSTRALIAN XI

M. DAVID T. EVANS P. FRASER R. SMITH

b. HANBY

15 64 35 37

ct SOWMAN b. TIGHE

b. KIRWAN

Run Out

S. O LOUGHLIN C. CONNOR

ct PIGOT b. TIGHE

7

Not Out

15

M. HOGAN S. WAITES T. LAMBERT

b. KIRWAN b. KIRWAN

2

0

Not Out EXTRAS

1

5

TOTAL (Innings Closed—45 overs) Did Not Bat-A. Zachariah, R. McCaffrie

181 for 7 wkts.

Bowling

0

M

R

W

H. TIGHE P. HANBY G. KIRWAN B. COLLINS D. R. PIGOT

13

0 0

55 27 41 43 10

2

6

1

16

4

3 0 0

9

0

1

0

LAW SOCIETY XI

ct FRASER b. CONNOR ct WAITES b. HOGAN St. EVANS b. ZACHARIAH ct SMITH b. ZACHARIAH LBW DAVID

D. R. PIGOT D. JACOBSON A. R. DEMPSEY D. MARTIN D. ENSOR C. LYSAGHT P. HANBY B. COLLINS

45

2

10

0

48

Run Out

7

ct HOGAN b. ZACHARIAH

1

b. ZACHARIAH

0

St. EVANS b. O LOUGHLIN

H. TIGHE F. SOWMAN G. KIRWAN

13 10

b. McCAFFRIE

Not Out EXTRAS

6

14

TOTAL

LAW SOCIETY CRICKETERS DEFEATED BY AUSTRALIANS

156

Bowling

0

M

R

W

M. HOGAN

7

2 0 0 1 0

13 21 12 28 43 25

1 1 1 1

S. O LOUGHLIN

On the occasion of their first visit to Ireland the Australian Lawyer-Cricketers XI played a Law Society XI at Castle Avenue, Dublin, on Tuesday, the 2nd of September. The Australian Club were on their fourth

63

M. DAVID C. CONNOR

3 7

A. ZACHARIAH R. McCAFFRIE

12

4

8

0

1

2 0 1