The Gazette 1983

APRIL 1983

GAZETTE

The Court stated that a detention which may initially "have been illegal can in certain circumstances be legalised {In re Laighléis^) and there are many circum- stances in which a valid arrest at law can be made immediately after the release of a person from a custody which had been for one reason or another illegal". Applicant in Richmond Hospital Dublin On the 15th July the applicant, while in the Bridewell Garda Station, complained of difficulty in breathing. He was taken to the Richmond Hospital. Before he left the Bridewell an extension order was made under Section 30 of the Offences Against the State Act 1939. The validity of the extension order was not challenged. On the 16th July in the Richmond Hospital, the accused was informed that he was no longer being detained. As the applicant left his room in the Richmond Hospital on the 24th July he was arrested at c ommon law and brought in custody to the Special Criminal Court where he was charged with the crimes of which he was subsequently found guilty. Again, it was argued that the c ommon law arrest was unlawful. Two armed gardai were on duty inside the applicant's hospital room. Two more armed gardai were on duty outside the room of the applicant. Anyone going to the room was searched. The Court of Trial had found that the applicant had willingly agreed to go to the Richmond Hospital for medical treatment and that he voluntarily remained in hospital until his discharge on the 24th July. The Court of Criminal Appeal stated that neither it nor the Court of Trial was required to infer from the very close Garda surveillance that the applicant was in Garda custody. The Court of Criminal Appeal stated that it was its opinion that the applicant's arrest on the 24th July outside his room in the Richmond Hospital was lawful and that the Special Criminal Court had jurisdiction to try him. Admissibility and weight of Evidence against the Applicant Evidence had been given in the Special Criminal Court that when a Detective Garda approached the applicant O'Shea in the forest, the Detective Garda asked the applicant "were you involved in this bank raid at Ballaghaderreen today?" and the applicant said, "yes, I was" and bowed his head. The Special Criminal Court found that the applicant had spoken the words of admission. Several arguments were advanced to the Court of Criminal Appeal to the effect that the Detective Garda who heard the admission was deliberately lying. The Court of Criminal Appeal stated that the Court of Trial heard and saw the witness and the finding of fact in relation to his veracity could not in the circumstances of the case be set aside. Two separate grounds were advanced on the question of the admissibility of the oral admission. First, it was submitted that jihe admission was not a voluntary one, and secondly it should not have been admitted as there had been a breach of the Judges' Rules. The Court of Criminal Appeal rejected the submission that the admission was induced by any threat made either explicitly or implicitly by the Detective Garda. The Court stated that the Detective Garda had not been under any obligation to caution the applicant before the incrimi- nating words were spoken. In the circumstances, the

Judges' Rules had not been breached. No Breach of Constitutional Rights

A footprint had been found on the counter of the bank at Ballaghadereen. There was evidence that it was from the shoe of Colm O'Shea. It was alleged that the applicant's shoes and clothing were unlawfully taken from him while he was in • Galway Regional Hospital. While in the intensive care unit of the hospital, swabs were taken from his hands. Wh en asked if he was agreeable to this, the applicant had nodded his head. The Court of Trial had not been satisfied that the applicant had consented to the taking of the swabs and concluded that there had been an illegal seizure of the clothing as well as of the matter from the applicant's hands. The Court of Trial, however, decided that there had been no breach of the applicant's constitutional rights and considered how its discretion should be exercised in relation to the evidence obtained by the Gardai in the Regional Hospital. The Court of Trial considered that the public interest was best served by the admission of the evidence with regard to the applicant's clothes, the swabs taken from his hands, the sample taken from his hair and the blood samples. The Court of Trial concluded: "To hold otherwise, the Court considers, in the words of Mr. Justice Lavery, in Attorney General v. O'Brien 20 'would be wrong to the point of absurdity and would be bringing the administration of the law into well deserved c on t emp t . '" Capital Murder Submissions were made to the effect that the evidence did not establish that the c ommon enterprise of the raiders involved an agreement to kill or cause serious bodily harm. It was argued that even if there had been a c ommon enterprise, it had not been established that the applicant had not withdrawn his consent to this c ommon enterprise. The Court rejected those submissions stating the verdict of capital murder and the conviction of the applicant must stand. Accordingly, application for leave to appeal was refused. Sentence of Death The Court of Criminal Appeal referred to a communication which the Court received on behalf of the Minister for Justice concerning the place for the carrying out of the sentences — in the event of the applications for leave to appeal being refused. The Court stated that the law provides for the sentence of death to be carried out by hanging. The Court stated that the Court of Trial did not have to specify the place of execution. The Court of Criminal Appeal finally stated in its judgment that "each applicant be detained in a lawful prison and be taken thence to a place of execution." Commutation The sentence of death was later commuted by the President on the advice of the Government. • The Court of Criminal Appeal agreed.

Footnotes 15. People v. Farrell [1978], IR. 13 at p. 20.

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