The Gazette 1983

GAZETTE

SEPTEMBER1983

vindicate that right; and that the onus of proving that there had been no deliberate and conscious violation of his constitutional rights had not been discharged by the prosecution. The statement was therefore held inadmissible and the Defendant set free. The primary requirement, however, is for the prosecu- tion to show that the confession was voluntary and therefore not coerced or otherwise induced but made with the true and free will of its maker. To quote Griffin J in Shaw's ease [ 1982] IR at p.60/61 "It is sufficient to say that the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged interrogation or excessive questioning, or by any one of a diversity of methods which have in c ommon the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational intellect and free will". In The People (D.P.P.) -v- Lynch [1982] IR 64 where the Defendant had been taken into custody on a Sunday evening and had made a statement at 2 p.m. on Monday afternoon and again at 6 p.m. admitting the murder, the subject of the proposed charge, the conviction by the Central Criminal Court was quashed on Appeal to the Supreme Court. The Supreme Court found that the Defendant had been subjected for almost 22 hours to sustained questioning, never had an opportunity of communicating with his family or friends and had never been permitted to rest or sleep until he made an admission of guilt. The Supreme Court (per O'Higgins C.J.) held that although the accused's admissions of guilt had been voluntary admissions, the trial judge should have excluded them in the exercise of his general discretion since the circumstances in which those admissions were procured had been oppressive and that all that had happened had amounted "to such circumstances of harrassment and oppression as to make it unjust and unfair to admit in evidence anything he said." The Supreme Court added that the jury by an appropriate question ought to have been asked as a question of fact material to the Defence whether the Defendant's evidence that he had been held against his wishes was or was not true. Another case on confessions is The People (D.P.P.) -v- McNally and Breathnach Court of Criminal Appeal: 16th February, 1981). In the case of Bernard McNally, it was accepted that the only evidence against him consisted of verbal admissions which were made after an interview extending over 44 hours interrupted by one night's sleep only. No explanation other than a previous course of conduct was tendered to the Special Criminal Court for the failure of the two garda witnesses directly concerned to make a note of the alleged verbal admissions by the Defendant and to afford to him an opportunity for correcting or rejecting them. The Court of Criminal Appeal was not satisfied that there were an y circumstances proved before the Court of trial which would justify the exercise of its discretion in favour of admitting in evidence these verbal statements notwith- standing the breach of the Judges' Rules. The conviction therefore was set aside.

be admissible at the discretion of the trial judge whereas the fifth member of the Court took the view that such evidence was always admissible provided it was relevant and probative. These principles were further reiterated by the Supreme Court in Shaw's case. However, there was no absolute harmony between the members of that Court with regard to every point that might happen to govern a confession in any given instance. The majority of the five- man Court disagreed with Walsh J. where he stated without qualification that no person may be arrested with or without a warrant for the purpose of interrogation or the securing of evidence from that person. Walsh J. had majority support in saying that a person's statement is to be ruled out as evidence obtained in deliberate and conscious violation of his constitutional rights even though the taker of the statement may not have known that what he was doing was either illegal or unconstitu- tional. It would require fine legal analysis to reconcile this part of his judgment with the part of his judgment in O'Brien's case quoted above. However, in all other respects the members of the Court concurred. One can only conclude from reading the O'Brien and Shaw decisions that an accidental, unintentional infringe- ment of the Constitution may not be sufficient to rule out a statement so that the maxim 'ignorantia juris non excusat' may no longer apply to this aspect of admissi- bility. In The People(D.P.P.) -v- Madden & Ors. [1977] IR. 336 (S.C.) a factor such as inadvertance was recognised as capable of being one of the "extraordinary excusing circumstances" envisaged in O'Brien's case. In the opinion of Griffin J. in Shaw's case (with whom the majority agreed) it is a violation of the accused's constitu- tional rights and not the particular act complained of that has to be deliberate and conscious for the purpose of ruling out a statement. In Madden's case Counsel for the accused objected to the admission of the statement of Madden on the ground that it was induced by oppression, prolonged questioning and the abuse of the power conferred on the Gardai by s.52 of the Offences Against the State Act 1939. It was further contended as a ground for excluding the statement that it was taken under circumstances in which the Defendant was unlawfully detained by the Gardai and that the completion of the statement was secured in breach of his constitutional right to liberty. Madden had been arrested at 7.15 a.m. on 19th June, 1975, under Section 30 of the 1939 Act under which Section the lawful period of detention is 48 hours. Accordingly, the time expired at 7.15 a.m. on 21st June, 1975. A garda officer began taking down the statement at 6.40 a.m. on the 21st June and therefore it was wholly improbable to be completed by 7.15 a.m. and it was in fact not completed until some time afterwards and he was only released at 10 a.m. on the same day (21st June). The Special Criminal Court had ruled that Madden's statement was voluntary and should be admitted in evidence and further had ruled that there had been no deliberate and conscious violation of the accused's constitutional right, but the Court of Criminal Appeal held (per O'Higgins C.J.) that the incriminating written statement which he had made had been completed after the expiration of the period of his lawful detention and while he was being detained unlawfully and without regard to the right to liberty guaranteed to the Defendant by Article 40 of the Constitution and without regard to the state's obligation under that Article to defend and 256