THE SUPREME COURT
[Supreme Court Appeal No. 40/2015]
[Court of Appeal No: 50/2012]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of Mr. Justice John MacMenamin dated the 18th day of January, 2017
1. Having been convicted of murder after a 22 day trial in the Central Criminal Court, the appellant, Barry Doyle was sentenced to the mandatory term of life imprisonment on the 15th February, 2012. That verdict and sentence was upheld by the Court of Appeal in a judgment (Ryan P.) on the 8th June, 2015 (Unreported,  IECA 109). Subsequently, the applicant applied to this Court to be granted leave to appeal. That application was granted, in order to deal with three issues of general public importance, which, in the interests of justice, should be determined by this Court.
2. It must be said at the very outset that Shane Geoghegan, who was killed on the 9th November, 2008, was an entirely innocent man, well-known, highly respected, and well liked in his own community. He had the misfortune to be mistaken for someone else, in a gangland feud which had caused significant loss of life. These facts do not absolve the Court from the duty of engaging in a detached and objective analysis of the issues which now arise.
3. The issues raised in this appeal are as follows:
4. It is necessary to state at the outset that this trial occurred in the year 2012. Thus, the law, as it was considered by the trial court, was the law as it then stood.
“(i) Whether or not the applicant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present prior to, and during, the 15th interview with An Garda Siochana, during which admissions were alleged to have been made. This raises the question as to whether the right to have a solicitor present during questioning is a matter of right of the detained person, or matter of concession by An Garda Siochana.
(ii) Whether the applicant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on 23rd February, 2012, can rely on that decision on (his) appeal?
(iii) Whether the matters set out in the applicant’s application, under the heading “relevant facts considered not to be dispute”, or any of them, constituted threats or inducements to the applicant, and calculated to extract a confession from him. This is a matter not decided by the court of trial, or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated”, or “worn off”, by the time of the admissions relied on by the State, as held by the trial judge, and whether or not there was any evidence on which it could have been determined that the effect of these threats, or inducements, (if any), had “dissipated”, or “worn off”, by the time of the alleged admissions.”
Findings of Fact and Inferences
5. One of the main areas for consideration in this appeal must be the judge’s ruling in the voir dire. That voir dire took up 11 days in the lengthy trial. Consideration of each of the three points makes it unavoidable that matters of fact arising at the trial be analysed, and also the judge’s inferences from those facts. These considerations arise particularly in the case of the first and third issues.
6. The issues of fact-finding and inference drawing were dealt with by the Court of Criminal Appeal in The People v. Madden  I.R. 336. But the principles outlined there were later refined by this Court in Hay v. O’Grady  1 I.R. 210. Relying on statements of the law in The People v. Madden  I.R. 336, counsel for the appellant submitted that this Court was in as good a position to draw inferences from facts as the trial judge, and should do so in support of the case he advanced.
7. However, in Hay v. O’Grady  1 I.R. 210 at 217, McCarthy J. observed that:
8. These principles emphasise, first, the critical role of a trial judge, as fact finder, and make clear that an appeal court should be “slow” to substitute its own inferences, where the trial judge’s conclusions are based on oral evidence, and where he or she had the opportunity to assess the credibility of witnesses. Counsel for the appellant relied on a number of extracts taken from transcripts of the garda interviews with the appellant after he was arrested, which were part of the evidence at trial. Counsel submitted that this Court should find that the trial judge had erred in admitting confession evidence, and that this Court should draw other inferences. But, the judge’s findings and inferences were based on real evidence, including video evidence of the interviews. This allowed the trial court to observe how the garda interviews of the appellant were conducted, and his demeanour, conduct and disposition. This video evidence was analysed piece by piece in the voir dire. Prosecution and defence counsel examined and cross-examined the garda witnesses, having regard to what transpired. The judge himself viewed a total of 20 hours of the video evidence. Parts of that evidence went to the jury. This Court has not had the same advantage as the trial judge, and certainly has not seen, or been invited to view, the full range of the interviews which were available at the trial. The three issues raised are now considered in turn.
“3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in "Gairloch," The S.S., Aberdeen Glenline Steamship Co. v. Macken  2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden  I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge. …” (Emphasis added)
Issue (1) Access to a Solicitor
9. The facts regarding the arrest of the applicant, and the arrest of his former partner, Victoria Gunnery, are also set out in the judgments of my colleagues Charleton J. and O’Malley J., and do not require repetition. I focus here on the specific evidence pertaining to Issue (1) identified earlier (at par 3 supra), that is, the right of access to a solicitor, or lawyer, generally.
10. On the early morning of the 24th February, 2009 the appellant was arrested, and brought to Bruff Garda Station in County Limerick for questioning. The procedure required by the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 were observed. The appellant was given notice as to his rights.
11. At the very outset, it is to be emphasised that this procedure included advice as to the appellant’s right of access to a solicitor. He availed of this right. His solicitor, Ms. Sarah Ryan, was notified of his arrival at the Garda Station, in accordance with the appellant’s request, at 8.01 a.m. The appellant was not questioned before he spoke to his solicitor. Ms. Ryan telephoned the station at 9.55 a.m. The appellant had a brief consultation with her by telephone. This consultation took place before the appellant’s first interview with the police. In fact, no admissions were made then, or until 26th February, 2009, in any of the interviews. This is considered later.
12. As to the first contact, there is no evidence that there was any limitation placed on the duration of this telephone call. No such submission is made. The call itself was short. The appellant was then interviewed by the gardai. He made no admission. Immediately afterwards, another solicitor, Michael O’Donnell, acting on behalf of the first named solicitor, Ms. Sarah Ryan, attended the garda station at 11 a.m. During that day, a series of garda interviews took place. The appellant made no admissions. On the following day, the 25th February, 2009, the appellant was brought to Limerick District Court for the purpose of an application to extend the period of his detention. Mr. O’Donnell, the solicitor, was present in court, and again consulted with his client. The appellant did not make any admissions, or confessions, on either the 24th or 25th February, 2009.
13. Shortly after 4 p.m. on the 26th February, 2009, the appellant was again being interviewed, in what is now identified as ‘Interview 14’. The appellant asked to see his solicitor again. There was a delay because the solicitor was uncontactable. The appellant then had a short phone conversation with Mr. O’Donnell. The interview then resumed, and the appellant continued to be questioned. At a later point during the interview, the appellant indicated he had not had sufficient time to speak to his solicitor, and wanted to speak to him further. However, garda questioning continued for a further hour before that interview ended. The appellant did not make any admissions of guilt during any part of that interview. Counsel for the appellant lays emphasis on the fact that his client did, however, say words during the interview to the effect that he would answer questions put to him after he had spoken to his solicitor. It is said his will had been broken down. The interviews included discussion of the position of the appellant’s former partner, Victoria Gunnery, who had also been arrested. The circumstances of her arrest are set out in O’Malley J.’s judgment.
14. At 18.52 on the 26th February, 2009, Mr. Michael O’Donnell, the appellant’s solicitor, arrived at the Garda Station. He again consulted with his client. Mr. O’Donnell next had a conversation with Detective Garda Hanley, and Detective Garda Philips. He then held a further consultation with his client. This took approximately 10 minutes. Mr. O’Donnell, the solicitor, had a further discussion with the two gardai. There was then a further shorter consultation between himself and the appellant.
15. A full account of the garda memorandum recording what occurred is set out in the judgments of my colleagues. I refer, in particular, to the detailed analysis of O’Malley J. on what transpired. Mr. O’Donnell is reported as saying, at one point, that the appellant would not admit to murder, and that he would advise his client to say nothing, and that he should let “you”, that is, the gardaí, do the work.
16. The interaction between Mr. O’Donnell and the gardai finished at 19.17 p.m. Mr. O’Donnell left the station. Interview 15 commenced. At the outset of this interview, at 19.43 p.m., the appellant was asked, as he had been on every previous occasion, whether he understood the caution as to his right to silence. He confirmed that he did. He confirmed that he had just held a lengthy consultation with his solicitor. In response to questions which were put immediately after the interview began, the appellant then confirmed that on the night of Saturday, the 8th, to Sunday, the 9th November, 2008, he had been present at Clonmore, Kiltaire, Limerick City, in a navy Renault Espace. At that point, interview 15 was interrupted, because a Garda Cowan came into the interview room to inform the appellant that his solicitor was on the phone, and wished to speak to him. The appellant then had a further telephone conversation with his solicitor, and the interview resumed at 19.57 p.m.
17. The appellant was then asked whether he had been involved in the murder of Shane Geoghegan. He then replied “I shot him”. He was then asked “Is that the truth Barry”. He responded “Yeah”. He described seeing “someone” walking across the housing estate in Limerick. He admitted that he held a gun, shot the victim, and then chased him behind a house where he shot him again. The appellant was asked at interview who he had shot, and he identified Shane Geoghegan as being the victim.
Conduct after the Admission
18. But subsequent to these admissions, the appellant was more guarded in what he said. He was asked whether Mr. Geoghegan, the victim, was his intended target. He responded “No comment”. When asked whether he had meant to kill Mr. Geoghegan, he answered “No comment”. When asked did the victim say anything to him, the appellant said that Shane Geoghegan, prior to his death, had said “Please stop”. The appellant refused to disclose who was with him that night. He did describe to the gardai what clothing he himself had been wearing, and the fact that these clothes were later burnt. He admitted firing a total of seven to eight shots altogether. The appellant pointed out, on a map, the point on the road in the housing estate where he first short Shane Geoghegan; the point where he had chased him around the back of a house in the housing estate; and where thereafter he shot him twice in the head. Later, the appellant told the interviewing gardai that the gun he was using had jammed. He said that he tried to shoot, and “it didn’t click”, on two or three occasions. He admitted that he had been lying in earlier interviews, when he said that he had no involvement in the killing. When he was asked whether there was anything else he wanted to say, he said “Sorry”. The appellant signed this statement. All of the interviews were recorded on videotape. Charleton J.’s judgment sets out other salient points as to what transpired.
Treatment while in Custody
19. After interview 15, the appellant was asked, on a number of occasions, how he felt. He responded that he felt alright. In a later interview, he accepted that the gardai had treated him “fairly” in custody, and that he had no complaints. His solicitor made no complaint as to the manner in which his client had been treated. At no stage was it claimed that the appellant had been put under psychological pressure. No request for a doctor was made. There is no suggestion that, at any point during his period in custody, the appellant was physically ill-treated. In the light of the case now advanced, it is also particularly noteworthy that neither the appellant, nor his solicitor, asked that the lawyer be present for any of the interviews, or throughout all of the interviews. The extent and range of his access to a solicitor has been outlined earlier.
The Exclusionary Rule
20. Prior to a description of the trial, it will be helpful briefly to describe the evolution of the law of evidence on admission of statements made in garda custody. The law in this jurisdiction on access to a lawyer by persons in custody has evolved considerably over the years. In The People (DPP) v. Healy  2 I.R. 73 (at page 81), this Court recognised the right of reasonable access to a solicitor as being of constitutional origin. The right in question is one which arises under Article 38.1 of the Constitution, that is, the right to trial in due course of law. This right implicitly contains recognition of the right to silence, and protection against self-incrimination in criminal proceedings. Access to legal advice is an adjunct to these rights.
21. In The People (DPP) v. Buck  2 I.R. 268, this Court considered the situation when, if a suspect requested access to a solicitor, the gardai had the right to continue questioning prior to a solicitor’s arrival in the station. The issue considered there was whether questioning in the interim period, but prior to the solicitor’s arrival, constituted a “deliberate and conscious” violation of constitutional rights, which would render any inculpatory statement inadmissible. Speaking on behalf of this Court, Keane C.J. rejected the proposition that, in such circumstances, there should be a “rigid exclusionary rule” (p. 281), which would treat inculpatory statements made in such circumstances as being inadmissible. He held that the court must have regard to the circumstances prevailing at the time (p. 281). Any determination of admissibility, he held, should be dealt with by the trial judge. Keane C.J. accepted that gardai might continue to question a suspect after access had been requested, provided the gardai had engaged in a bona fide effort to contact the solicitor, and thereby to facilitate a consultation (at p.281). In fact, neither Buck, nor any of the other authorities cited, assist the appellant, for reasons now explained.
The Question of Causation
22. The established jurisprudence makes clear that, to be excluded, an inculpatory statement must have been obtained “as a consequence of the breach of the accused’s right of pre-trial access to a lawyer” (see the authorities cited earlier). In Buck this Court was satisfied that, as there had been no deliberate and conscious breach of the appellant’s right of access to a lawyer, and although the continuation of the questioning by the gardai between the time of request and arrival had crossed a threshold into unlawful detention, no causative link had been established between the breach in question, and the incriminating statements made after the suspect’s consultation with a solicitor. A consequence of the decision in Buck, established later in DPP v. Gormley & White  2 I.R. 591 (“Gormley”), will be considered later.
23. In The People v. O’Brien  2 I.R. 206, this Court confirmed that, in the event of a denial of access to a lawyer, the constitutional rights of an accused person were restored once he was granted access to a solicitor, and that an inculpatory statement which was made thereafter, was admissible in evidence, unless elicited by the use of material obtained during questioning whilst the constitutional right of access to a solicitor had been breached. In O’Brien, McCracken J. at p. 211, par 13, speaking for this Court, approved Keane C.J.’s obiter observations in The People (DPP) v. Buck  2 I.R. 268 at 283, to the effect that it was necessary to establish a “causative link” between any breach of an accused’s constitutional rights, arising from the questioning before the solicitor arrived, and the making of incriminating statements. (See also, Finlay C.J. on this “vital issue” in People (DPP) v. Healy  2 I.R. 73, at 81).
Presence of Lawyer at Interview
24. It is also necessary to consider the question of access to legal advice during (in the sense of “throughout”) interviews. The issue was considered by this Court in Lavery v. Member in Charge Carrickmacross Garda Station  2 I.R. 390. There the issue was, whether, having regarding to the limitations on the right to silence introduced by statute, (the Offences Against the State Act, 1939, as amended), a person detained under that Act, was entitled to have the presence of a solicitor during all questioning. O’Flaherty J., at p. 396, speaking for this Court, rejected the proposition that a suspect was entitled to have a solicitor present throughout garda interviews. He held it was not open to a suspect, or his solicitor, to prescribe the manner in which interviews might be conducted, or where. Thus far, therefore, the judgment has set out the law as it stood at the time of the trial.
25. As already outlined, the trial had a duration of 22 days before a judge and jury. Almost half of that trial involved a painstaking analysis of the interviews in a voir dire, in the absence of the jury. This involved the judge himself viewing all of the interviews, some 20 hours in total. A videotape of the interviews was shown, and the gardai were examined and cross-examined thereon. Other elements of the prosecution case are set out later in this judgment. Having heard the evidence, and viewed the videos, and heard submissions from counsel, the trial judge (Sheehan J.) ruled on what he had heard and observed. He ruled that the confession evidence might be admitted into evidence before the jury.
26. There are a number of points which might be noted at this stage. Mr. O’Donnell, the solicitor who consulted with the appellant, was not called to give evidence, though a garda memorandum of what transpired between the lawyer and the interviewing gardai became part of the prosecution case. My colleagues describe this interaction with the gardai in their judgments. It is noteworthy that the appellant himself did not testify at the voir dire. He was not under an obligation to do so. The judge’s ruling is set out in more detail in the judgment delivered by Charleton J.
27. In summary, the judge held that the appellant had had access to a solicitor on a number of occasions, and at the times when he requested it. He observed that the appellant had had two consultations with his solicitor while in Bruff Garda Station, prior to making admissions in interview 15, and that he had also been represented by that solicitor in court, when an application was made to extend his detention. He held that the gardai were entitled to continue interviewing the appellant in interview 14, even though he had complained that a telephone conversation was not a proper consultation, and when the solicitor’s arrival at the garda station was expected within an hour. It requires to be reiterated that the appellant did not make any admissions during that interview. The trial judge was satisfied that there had been no breach of the appellant’s constitutional right to legal advice. Applying the principles as found in Buck and O’Brien, the judge found there was no causative link between what occurred in Interview 14 and later, as by then the appellant had consulted with his solicitor.
28. The judge made a number of findings of fact on the question of the appellant’s character, conduct and demeanour during the interviews. He held that the appellant appeared to be physically and mentally strong throughout. He stated that the appellant engaged with gardai when he chose to do so, and refused to answer questions when he did not wish to do so. He described the appellant’s background. He had worked for a construction company as a block layer and played Gaelic football. He also outlined that, at the time of his arrest, the appellant was living in basic accommodation in Limerick City wearing a bulletproof vest. The Court also noted that a few months earlier when asked by members of An Garda Síochána where he had been the previous night (that is the night of the murder), he had responded by saying ‘Fuck off’.
29. The judge held that the interviews had been conducted in a careful, patient and structured way, where the results of the garda investigation were gradually revealed to the appellant, and the appellant first began to engage with Detective Garda Hogan in a limited way, essentially as a result of appeals to his humanity. It must be said the gardai laid very considerable emphasis on the fact that Victoria Gunnery, who was in detention, was herself suffering hardship, and that the child who Victoria Gunnery had with the appellant would have no one to care for it. This included at least one statement that the appellant’s lack of confession was causing Ms. Gunnery to be detained, and to be away from her child, and that this was the appellant’s fault. The circumstances are outlined in O’Malley J.’s judgment. The gardai also laid much emphasis on the fact that Shane Geoghegan, an entirely innocent man, had been shot. Ultimately, the appellant told the gardai about his involvement with the death of Shane Geoghegan.
The Judge’s Decision on Admissibility at the Trial
30. The judge held that the gardai had conducted themselves in a manner which was, at all times, professional, courteous and involved no oppression. He held the appellant was in full control of himself throughout the interviews, and that he had made the admissions which he did because he chose to do so, and on the basis that he engaged with gardai only when he wished to do so. The trial judge rejected the submission advanced by counsel for the defence that there had been a breach of fundamental fairness. There, the judge was referring to the principle outlined in the judgment of this Court in The People v. Shaw  1 I.R. 1, where Griffin J., speaking for this Court, identified the main overarching question, in ascertaining whether a statement should be admitted in evidence, as being whether the statement had been obtained by means which were unfair, oppressive or as a result of a police stratagem. The statement in Shaw emphasised that the onus was on the prosecution to establish, beyond reasonable doubt, that the statement was voluntary, and that a court must look to the substance of the standards of fairness, rather than mere technical compliance.
31. Having referred to that passage in Shaw, the trial judge directed himself to the principle that he must be astute to ensure that, although a statement may be technically voluntary, it should, nonetheless, be excluded, if by reason of the circumstances in which it was obtained, it fell below the required standards of fairness. He held that there had been no breach of the requirements of fundamental fairness, and held that the confessions were admissible.
32. It is important to point out that the interview process was a simple one, in the sense that the prosecution did not place any reliance upon inferences to be drawn from the silence or conduct of the accused person. This was not a situation where, at trial, reliance was placed on a failure to mention particular facts, on a failure or refusal to account for objects or marks, or a failure to account for his presence at a particular place; all of which, now, may give rise to inferences which may be drawn by a trial court. (See s.18, 19A Criminal Justice Act, 1984, as amended)
33. The evidence before the Central Criminal Court was by no means confined to the video evidence in the interviews. Additionally, there was ballistic evidence, and testimony relating to the stolen getaway car, which had been stolen a considerable time before the murder, and concealed in a car park in a nearby block of flats. There was evidence of April Collins, who at the time of the murder was the girlfriend of Gerard Dundon. She gave evidence that, on the day before the murder, she had been present in a house on Hyde Road in Limerick when another member of the Dundon family, John Dundon, had ordered the appellant to kill a man named John McNamara with a firearm. April Collins testified she was also present at a meeting in a pub carpark on the outskirts of Limerick on the morning after the murder of Shane Geoghegan, with John Dundon, the appellant, and Gerard Dundon, when John Dundon discovered that Barry Doyle had, in fact, murdered the ‘wrong man’, that is, the unfortunate victim, Shane Geoghegan, and confronted Barry Doyle with this fact. To this the appellant’s response was that it was “him”, that is to say, the intended victim, and not Shane Geoghegan.
34. There was also evidence of Victoria Gunnery, the former partner of Mr. Doyle. One part of her evidence was to the effect that during her interviews whilst in custody, she had indicated that their child was due to attend a medical appointment in Dublin on the day she was arrested, and had told the appellant this. Independently of this, the appellant had told his interviewers about this appointment. However, the evidence of Ms. Deirdre Devlin, an administrator worker in the hospital in question, was to the effect that no such appointment had been made for that day. This evidence was admitted for the purposes of determining whether or not the issue had been an operative factor in the appellant’s thinking when he made the confession.
35. But the evidence of Ms. Gunnery went much further: it included descriptions of a number of conversations with the appellant, subsequent to the murder, from which the jury were entitled to infer that the appellant tacitly accepted that he had committed the crime.
The Judgment of the Court of Appeal
36. The judgment of the Court of Appeal (Ryan P., Birmingham J., Edwards J.) is an extremely full and detailed one. The court considered each of the 27 grounds of appeal which were raised by counsel for the appellant. These issues concerned admissions by the appellant, evidential matters in respect of the two witnesses mentioned above, criticisms of the judge’s charge to the jury, questions regarding material that had been furnished to the jury, and a legal issue arising out of the decision of this Court in the case of Damache v. DPP  IESC 11,  2 I.R. 266, a decision which was delivered subsequent to the trial. The court ruled that the Central Criminal Court judge had acted correctly. It rejected the suggestion that there had been a breach of constitutional rights in the obtaining of the statement, or the proposition that the confession had been involuntary, made as a result of threats, inducements or oppression, or that the admission had been made as a result of breaches of the accused’s constitutional right to access to legal advice, or that they had been made as a result of breaches of the requirement of fundamental fairness. I return to other issues later in this judgment.
The Appellant’s Case to this Court on the Three Issues Certified
Access to a Solicitor
37. Relying on Article 38.1 of the Constitution, counsel for the appellant submits to this Court that the appellant’s access to a solicitor, both throughout the period of his custody, and specifically prior to, and during, the critical interview, that is, Interview 15, on the evening of the 26th February, 2009, was so restricted that it did not constitute “reasonable access”; that the degree of access was insufficient to offset the inequality generated by the interview process; that the appellant was relatively young and inexperienced; that he was interrogated by experienced police officers, who used a series of identifiable techniques and methods to heighten the inequality between the parties, and thereby encourage a confession. The case is made that the confession evidence should not have been admitted. It is said that the appellant had a right to have a solicitor present throughout the garda interviews. In making these submissions, counsel sought, in particular, to rely on the recent decision of this Court in The People (DPP) v. Gormley & White  IESC 17,  2 I.R. 591 (“Gormley”); the United Kingdom authority of Cadder v. H.M. Advocate (Scotland)  UKSC 43,  1 WLR 2601; Salduz v. Turkey 36391/02  ECHR 1542 (27 November 2008) ; The People (DPP) v. Conroy  I.R. 460; and The People (DPP) v Buck  2 I.R. 268. Counsel submits that this Court should now apply principles regarding access to a lawyer during interviews in detention, which he said were identified by the ECtHR in Salduz, and also those enunciated by the Supreme Court of the United States in Miranda v. Arizona, (1966) 384 U.S. 443. The thrust of counsel’s submission is that this Court should not follow its own previous judgment in Lavery (cited earlier at par 24). Additionally, counsel asks the Court to infer causal links between what happened throughout the interviews, and, in particular, between Interview 14 and Interview 14, he submits the former should be linked to Interview 15. He suggests that the appellant’s will was broken down during questioning.
No Causal Link Established
38. While counsel invites this Court to make the inferences which are contrary to those drawn by the trial judge, such contentions must be seen, in the light of the authorities cited earlier, and against the appellant’s own remarks about his fair treatment, and the absence of any complaint by Mr. O’Donnell. There was, in fact, no evidence to suggest that the appellant’s will had been sapped, in a manner that was unlawful. There is no doubt that in Interview 14 questioning continued beyond the point where the appellant said that he wanted a proper consultation with his solicitor. What is more important is that there was nothing elicited in Interview 14 which carried through to Interview 15. The appellant’s remark in Interview 14, that he would answer questions after he spoke to his solicitor, is a very frail, and untenable, basis for inferring that his position was by then, or thereafter, “irretrievably prejudiced”.
39. Moreover, as pointed out in the authorities cited in the earlier part of this judgment, specifically Hay v. O’Grady, an appeal court should be particularly slow to draw inferences in circumstances where it has not been invited to see the videos, which the trial judge did, or any excerpts from the videos. The court of trial made specific findings on the appellant’s strength of mind, and on the limited number of occasions that he had, actually, answered questions put to him by the gardai. The judge described the previous encounter with the gardai as indicating a certain fortitude of mind which had not been undermined.
40. In order to understand the next limb of the appellant’s submission, it is necessary to now analyse the decision of this Court in Gormley. In Gormley, this Court had to consider, among other issues, the applicable law where important investigative steps had actually taken place before access to a solicitor had occurred, but vitally, after the accused had requested to have a solicitor present. Mr. Gormley was interviewed by gardai, having been arrested. He gave the names of two solicitors who he wished to have advising him. The very fact of that timely request was a key point in the judgment delivered by this Court. Efforts were made to contact both solicitors. One of the solicitors told the gardai, by telephone, that he would attend the Garda Station shortly after 4 p.m. Despite this knowledge, the appellant was interviewed by the gardai before then, at which time he made a number of inculpatory statements. The solicitor arrived at 4.48 p.m., and consulted with Mr. Gormley. The inculpatory statements were admitted at the trial. On appeal, this Court held that the trial judge had erred in admitting the evidence. The Court held that there had been an unlawful denial of access to a solicitor, and that consequently the subsequent trial of the appellant, Gormley, had not been in accordance with Article 38.1 of the Constitution. That Article requires that any trial shall be in due course of law.
41. In the course of his judgment in Gormley  2 I.R. 591, Clarke J. pointed out at p. 628-629, for a unanimous court (Hardiman J. in a concurring judgment):
42. These observations are now relied on as being the basis of a further extension of the right of the suspect to have access to a lawyer throughout an interrogation. Relying on Gormley and Salduz, and the decision of the Supreme Court of the United States in Miranda, counsel for the defence submits that the appellant had a right to have his solicitor present throughout the interviews.
“ …, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States. …” (Emphasis added)
43. It seems to me that these submissions cannot succeed in the instant case. It is true that, after the judgment in Gormley, the Department of Justice issued a guidance note to members of An Garda Siochana, indicating that lawyers might be present throughout interviews. This is to be welcomed, and it is also, now, a reality.
44. But the primary question which falls for consideration in this case is whether it can be said that there was a “deliberate and conscious” denial of a constitutional right, at the time (2009), when such an asserted ‘right’ had not then been recognised by the courts. It is important to point out that, in Gormley, the appellant had, at the very outset, asked for a solicitor, and yet the gardai continued to interview. It was on that factual basis that the exclusionary rule was brought to bear in that case. Thus, although the analysis was viewed under the rubric of Article 38 of the Constitution, the ratio of Gormley is, in fact, consistent with the established jurisprudence.
45. It is true that, since the Act of 1984, (referred to earlier), inferences may be drawn from conduct during interview, of the type outlined earlier in this judgment. (see paragraph 32 supra). As long back as the O’Briain Report in 1978 (Report of the Committee to Recommend Certain Safeguards for Persons in Custody and for Members of an Garda Síochána), there were views that solicitors should be entitled to be present at garda interviews. It must be recognised that part of this Court’s jurisprudence is that the Constitution is a living document, and regard should be had to “prevailing norms” in the identification and evaluation of rights of an individual (see the judgment of Walsh J. in McGee v. Attorney General  I.R. 284, at 319, and O’Higgins C.J. in The State (Healy) v. Donoghue  I.R. 325, at page 350, which are referred to in Gormley at p. 627, par 78 and p. 628, par 79 respectively). It is also to be noted that the European Union has issued a Directive (2013/48/EU of the 22nd October, 2013) concerning the right of access to a lawyer in pre-trial detention. Although not binding on Ireland because of a derogation, this document, too, contains a range of protections and values intended to further protect the rights of suspects who are under interrogation, though it does not address the precise consequences which should arise if there is a breach of the right of access, or advice; nor does it specifically say what is entailed, in the sense of whether and to what extent a lawyer’s presence is required during and/or throughout all interviews.
46. But what I think is imperative to bear in mind, is that here (subject to the point made regarding the immaterial Interview 14), the appellant was granted access to a solicitor at the outset of his custody, during his custody, prior to the relevant interview, and even during that interview. His limited confession was that he accepted that he had killed Shane Geoghegan. Unavoidably, the appellant must face the fact that the logic of what is sought to be applied here is a retrospective recognition and application of a then unrecognised constitutional right to have a lawyer present throughout interviews.
47. This proposition has fatal flaws. First, it was not the law at the relevant time. It was not the law, even after the judgment of this Court in Gormley, though it might be seen as a possible logical consequence of that judgment. There is no evidence that the absence of a lawyer at the relevant time was a causative factor in the appellant making his confession. The fact that Mr. O’Donnell did not testify does not allow this Court to draw any inferences of what ‘might have been’. There is no suggestion that Mr. O’Donnell did not testify as a result of unavailability. The Court can only conclude on the evidence, therefore, that the appellant made a deliberate choice. In fact, he was recorded on video as saying “it was my choice to admit what I did” in Interview 17. This is to be seen in the context of an earlier statement in Interview 16, where he said “I shot him. I’m going to get what I deserve”. The question, therefore, which arises is whether observations of this Court in Gormley should be “retrofitted” to this case, in circumstances where Gormley was decidedly not the law at the time of the arrest or detention, or at the time of trial. As already pointed out, Gormley does not, in fact, go so far as to say that, in all circumstances, there must be a right to a lawyer throughout interviews. Furthermore, it is necessary to emphasise that this was not a case where any inferences were sought to be drawn from a suspect’s silence or conduct at interview to be used subsequently at trial. The logical frailty does not end there. Because this is an appeal within a criminal process, in order for the appellant to succeed, the Court must find that there was a “deliberate and conscious” denial of the appellant’s constitutional rights.
48. There, I would hold, the proposition becomes entirely unsustainable. How, on the basis of all the established jurisprudence, can it be argued that there was a deliberate and conscious violation of a right then unrecognised, either under the Constitution, or, as I seek to explain later, under the Salduz judgment, or any of its successors? The proposition stands logic on its head. It is based on an unsustainable premise which must inevitably lead to a flawed conclusion. “Deliberate and conscious” necessitates awareness, and the deliberate ignoring of an established right.
49. This primary conclusion is fortified by the judgments of this Court in a subsequent authority. Subsequent to the trial, the exclusionary rule was again considered by this Court in The People (at the suit of the Director of Public Prosecutions) v. JC, a judgment delivered on the 15th April, 2015 (Denham C.J., Murray J., Hardiman J., O’Donnell J., McKechnie J., Clarke J., MacMenamin J.). There, this court had to consider the question of admissibility of evidence which might have been obtained in breach of constitutional rights. The exclusionary rule, now identified in JC in the judgment of Clarke J at par 5.10, is that:
50. But Clarke J., speaking for the majority, then went on to consider the following situation:
“Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context, deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who are involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.” (paragraph 5.10) (Emphasis added)
51. While the law may be in a state of development, it does not go so far as the appellant contends. It cannot be logically contended that this confession was taken in “deliberate and conscious” violation of a constitutional right. While the evidence at the trial was, of course, tested in accordance with the then case law, it is not possible to identify any deliberate or conscious violation to which a causative link can be attached. It might be said that, if retrospectivity is looked for, then it must cut both ways, with the consequence that the appellant cannot show any deliberate rights-violation, but also where there have been subsequent “developments” in the law (see the passage from Gormley quoted earlier). It is evident that the appellant seeks to rely on such a development when this was out-ruled in Clarke J.’s judgment in Gormley (see above). The appeal cannot succeed on this constitutional submission.
“5.11 Next, it seems to me to follow that, where evidence is taken in circumstances of unconstitutionality, but where the prosecution establishes that same was not conscious and deliberate in the sense already identified, the evidence should be admitted if the prosecution can also establish that the unconstitutionality concerned arose out of circumstances of inadvertence or by reason of developments in the law which occurred after the time when the relevant evidence was gathered.” (Emphasis added)
52. In all the circumstances, and the developments in the law and procedures since Lavery, I would now be prepared to recognise such a right under Article 38.1 in future cases, but that is quite a different matter from the retrospective application the appellant seeks.
Salduz v Turkey 36391/02  ECHR 1542 (27 November 2008)
53. It is well established that our courts give recognition to Convention jurisprudence, as expressed in the case law of the ECtHR. With this in mind, it is next necessary to consider in more detail the judgment of the Court of Human Rights in Salduz. Notably, the Court has only been referred to that judgment of the court, and not to any other of the very many judgments which were delivered subsequent to that time. (See, for example, Navone v. Monaco, Application No. 62880  ECHR 1032 (24 October 2013); Dayana v. Turkey 7377/03  ECHR 2278 (13 October 2009), Brennan v. U.K 39846/98  ECHR 596 (16 October 2001). See also the case of Borg v. Malta, 37537/13  ECHR 53 (12 Jan. 2016) for the wide margin of discretion given to national courts regarding the retrospective application of Salduz.
54. Salduz was very different from the instant case. In Salduz, a vulnerable 16 year old applicant, was taken into custody by police officers. He was beaten and insulted while in custody. The Turkish Code of Criminal Procedures stipulated that, for juveniles, legal assistance was obligatory. That right was not vindicated. In those circumstances, the European Court of Human Rights held that Article 6(1) ECHR required that, as a rule, access to a solicitor should be provided, as and from the first interrogation of a suspect by the police, unless it was demonstrated, in the light of the particular circumstances of each case, that there were compelling reasons to restrict that right. The juvenile applicant did not have access to a lawyer at that time, or prior to the time he made statements to the police, the public prosecutor and the investigating judge. No justification for denying him access to a lawyer was given, other than that this was provided for on a systematic basis by the relevant legal provisions. In Salduz, the European Court of Human Rights held at par 55 that:
Referencing this to the overall trial process under Article 6, the court went on to hold:
“Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police,”
55. The distinctions with the instant case are clear, where, to reiterate, from the very outset, the appellant was granted such access and advice, and continued to have access to a lawyer up to, and including, the time of the confession. To my mind, therefore, the facts of Salduz are very distinct. There is no evidence that the appellant’s confession was brought about as a result of the appellant’s age, conduct, or vulnerability, unlike the distinct situation in Cadder, cited earlier. It was open to the defence to adduce such evidence, if there was such. There is no suggestion that his physical or mental wellbeing was put at risk.
“The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Emphasis added) (paragraph 55)
56. There is no doubt, that under ECtHR jurisprudence, the guarantees provided for under Article 6 ECHR are applicable, at minimum, from the moment that a criminal charge exists, or perhaps even earlier. A court must be particularly astute to deal with situations where the issues facing a vulnerable accused may be amplified by increasingly complex legislation on criminal procedure with regard to gathering and using evidence. But none of these considerations arise here, as they did in Salduz, or succeeding cases.
57. But, the appellant’s submission is misconceived for a further reason. As the Court of Human Rights has explained on many occasions, it is not its role to determine, as a matter of principle, whether particular types of evidence, including evidence obtained unlawfully in terms of domestic law, may be admissible. As the ECtHR has explained, the question to be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. It must be acknowledged that prompt access to a lawyer is a vital protection for the vulnerability of suspects in police custody. But that, precisely, was the right which was extended to the appellant in this case. There is no suggestion that the right of access was delayed on the appellant’s arrest. This is not a case where the prosecution is forced to submit there were compelling reasons for some restriction on right of access. In fact, Salduz does not establish a ‘bright line’ rule precluding any use of statements made without legal advice (insofar as that could be said to arise here), where there was interrogation without access to a lawyer. (See, generally, the judgments of the ECtHR, recently summarised in Ibrahim & Others v. United Kingdom, Application 5041/08, 50571/08, 50573/08 and 403521/08, delivered 13th September, 2016).
58. While it might be said that the Miranda jurisprudence of the United States originally created a strict bright line exclusionary rule, this is not the position under Convention jurisprudence (nor, indeed, in subsequent United States Supreme Court jurisprudence: See Connecticut v. Barrett, 479 U.S. 523 ; Oregon v. Bradshaw, 462 US 1039 ). The test under Article 6 is, as I would understand it, rather, a two-stage one, wherein the Court should examine whether there were compelling reasons for a restriction on access or advice, and whether such a restriction impacted on the overall fairness of trial proceedings. The first consideration does not arise. As to the second step there are a number of tests subsequently for ascertaining whether the proceedings were fair. (See Ibrahim, pronounced after the hearing of this case). There is nothing in the instant case to suggest that the evidence which was obtained was unreliable or inaccurate. It was corroborated. It cannot be said that there has been a violation of any other Convention article. There is no suggestion that the appellant actually retracted his statement. Perhaps the most graphic image emerging from the transcripts is the fact that, at interview, the appellant apparently wore a set of rosary beads around his neck, and after having confessed, later gave these rosary beads to the gardai to be given to Shane Geoghegan’s mother. The appellant was convicted by a jury, after the jury had been fully charged regarding the standard and onus of proof in criminal case, that is to say, beyond reasonable doubt. There was no procedural unfairness in the procedure of the trial. As a matter of fact, the appellant in this case had not been charged at the time it is said there was a denial of access to a lawyer. Insofar as ECHR jurisprudence is concerned, a question might arise as to when Article 6 rights are actually triggered. (See the judgment of Judge Mahoney in Ibrahim, cited earlier at paragraph 55).
59. For the reasons which are outlined earlier, it cannot now be successfully argued that the position of the appellant was “irretrievably prejudiced”. What is in question here is, of course, an ex post facto analysis of the conduct of the trial court, and the appeal, and how the evidence was treated. But throughout, the appellant had the opportunity to challenge the authenticity of the evidence, and oppose its use. The exclusionary rule, as it stood, was applied. There was substantial other evidence which supported, and corroborated, the confession. In fact, that corroborative evidence would, in itself, have been sufficient to convict the appellant.
60. I would hold, therefore, this Convention argument on the confession cannot succeed either. I am not persuaded that the right of a lawyer’s presence throughout all interviews is recognised in ECtHR jurisprudence, either in 2009, or now. Thus, such a right cannot be relied on by the appellant, nor is it cognisable in our law.
61. I turn then to the second question regarding the judgment of this Court in Damache v. DPP.
Damache v. DPP
62. In Damache v. DPP  IESC 11,  2 I.R. 266 this Court decided that a warrant signed by a member of An Garda Siochana, who was part of an investigating team, and issued pursuant to s.29(1) of the Offences Against the State Act, 1939 [OASA], used to enter a suspect’s home was repugnant to the Constitution.
63. Here, the appellant was arrested during a search of his home at 106 Hyde Road, Limerick, carried out on foot of a warrant issued by Superintendent McMahon, who was in overall charge of the investigation.
64. At the outset, it is important to note that during the trial, counsel for the appellant took no issue in relation to the warrant. The prosecution stated to the trial court that there was no issue with the lawfulness of the warrant. This was not contested.
65. The appellant’s case before this Court, it must be said, is surprising. It is said that the prosecution did not bring to the trial judge’s attention the fact that the DPP, as the respondent in Damache, was awaiting the outcome of a determination by the Supreme Court on the constitutionality of a s.29 warrant obtained in similar circumstances to those in this case.
66. It is true that this Court delivered its decision in Damache on the 23rd February, 2012, eight days after the trial had concluded, but before the appellant’s notice of appeal had been filed. The unconstitutionality of the arrest warrant was included as a ground of appeal in the appellant’s notice of appeal before filing. Before the Court of Appeal, it was submitted, that the warrant issued by the Superintendent had been unlawful, and that the appellant’s arrest, and subsequent detention, were consequently unlawful. The trial court had proceeded on the basis that the arrest and detention were lawful. The evidence and framework of the case proceeded on that basis. The Court of Appeal held that the appellant was precluded from making an argument, as it had not raised the issue at all during the trial.
67. This is not a situation where the appellant, either at the trial, or in collateral proceedings, had sought to challenge the constitutionality of s.29 of the 1939 Act on any grounds (see the decision of this Court in Connolly v. The DPP  IESC 40). Moreover, it is to be borne in mind that an adverse ruling at a trial on the lawfulness of the arrest, following a challenge to the search warrant, would not necessarily have had the consequence of rendering the confession of the appellant inadmissible (see The People (DPP) v. JC  IESC 31). Because the issues of the lawfulness of the search, and the arrest of the appellant, were not raised at trial, there was no detailed evidence as to the state of mind of the prosecution witnesses as to the arrest, or subsequent procedures. Having regard to the adversarial nature of the trial process, to raise the point ex post facto inevitably creates unfairness, and would be to constitute an injustice (The People (DPP) v. Cronin (No. 2)  IESC 9,  4 I.R. 329). Evidence as to the circumstances of the arrest and the state of mind of the gardai could have been addressed at trial. It was not. Each side proceeded, in good faith, on the basis of the law then in being at the time of the trial. I would reject this ground also.
68. I now turn to the third question.
69. Was the confession, then, brought about by inducements? The defence case is that there were inducements, and that these inducements, even if not specific, were implied. It is said that the implication was that if there was a confession, Victoria Gunnery would be released. The trial judge held that, even if these had been offered, their effect had been dissipated. This was a factual determination. (See Hay v. O’Grady, cited earlier). Counsel for the appellant submits that there was no ruling from either the trial court, or the Court of Appeal, on what he submits is an antecedent question as to whether, in fact, inducements had been offered. Counsel invites this Court to conclude that, if the trial judge had found the remarks at interview, now referred to in Charleton J.’s judgment, objectively capable of amounting to a threat, or a promise, it would follow that the confessions must then be excluded from the jury, unless the prosecution had negatived, beyond reasonable doubt, that the accused subjectively understood the inducements, and also negatived, beyond reasonable doubt, that his confession was as a result of the threat or promise (see The People v. McCann  4 I.R. 397, referred to below).
70. As the law stands, the threshold for inducements is a low one. The United Kingdom courts have held in the past that even the most general threats, or slight inducements, would taint a confession (see R v. Smith  2 QB 35, Lord Parker L.C.J.). As will be seen, my view of the legal principles involved coincide with those of O’Malley J. in her judgment.
71. The classical statement of what amounts to inducement in our law was set out by O’Flaherty J. in The People v. McCann  4 I.R. 397. It is a trifold test. O’Flaherty J. held at page 411:
72. Other authorities show the courts will carefully scrutinise inducements regarding consequences to family members, or close associates (see The People v. Hoey  1 I.R. 637). In this context, counsel for the appellant refers to a number of passages in the interviews which, it is submitted, constitute an implied inducement relating to Victoria Gunnery’s detention.
“As regards what constitutes an inducement, the test would appear to be (a) were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or promise? (b) Did the accused subjectively understand them as such? (c) Was his confession in fact the result of the threat or promise?”
73. In summary, the inducements may be summarised as being to the effect that Victoria Gunnery was in custody for the same offence as the appellant, and was suffering hardship and deprivation having done nothing wrong. It was said their child was also suffering hardship; that the appellant had failed as a father; he should come clean and tell the truth; that unless he confessed he would not get to see the child or his children by another relationship, and that in return for his confession, Ms. Gunnery, who was being detained, would be released.
The Appellant’s Case
74. It is unnecessary to again rehearse the events which occurred in the latter part of Interview 14 up to the time of the confession.
75. There is no doubt that, in the course of the many interviews, the appellant was also asked to think of Ms. Gunnery, their child, and the deceased’s family. His volunteering of rosary beads has been set out earlier. This unusual and bizarre gesture merits some consideration, in the context of the “inducement” controversy. It certainly would provide support for the judge’s conclusion that what actually actuated the confession were appeals to the appellant’s humanity.
76. The case made by counsel for the appellant is that, it was the hope of release for Ms. Gunnery that constituted the inducement. As set out earlier, in fact, the position with regard to the appellant’s relationship with Ms. Gunnery, and with his child, was by no means ideal. Their child, Demi Leigh, had been born in May, 2007. The appellant spent the first Christmas away from the child in Spain. He then moved to Limerick for unspecified personal reasons in 2008, although he was not taking up work, and in moving to Limerick he took himself away from his girlfriend and his children. In 2009, shortly before his arrest, he had been in Dublin for a week, or thereabouts, and had spent the time in a hotel drinking with friends, without visiting his children at all. In the short period prior to his arrest, there had been an extraordinary degree of exchanged text messages between the appellant and his former girlfriend. An exchange of over 100 text messages in one day could lead to a number of different interpretations about the state of the relationship between the appellant and his former partner. It is unnecessary to go through the evidence on the doubtful medical appointment for one of the children.
77. But, the trial judge had seen 20 hours of the video tapes of the interviews. One can only again comment that this gave him a unique vantage point from which to analyse the totality of the evidence. This Court, rather, was invited, in the absence of the surely influential video evidence, to consider only the transcripts of the interviews, and particularly a number of selected passages therefrom. The appellant did not testify in the voir dire. This is not, in any sense, to suggest that there was an onus upon him to do so at the trial, but rather to point out this fact in the context of the legal and evidential tests that arise in considering the second and third strands of the three “McCann” criteria ( 4 I.R. 397 at 411). Relevant, too, is the fact that the trial judge had the opportunity of assessing each of the garda witnesses who testified in the voir dire regarding the circumstances of the interviews. It is to be noted that the appellant did not ask, after the confession, whether Ms. Gunnery would be released.
Strand 1 of McCann
78. It is now said that the three criteria identified in McCann were not directly addressed at the trial, or by the Court of Appeal. Here, what is important to bear in mind is that the learned trial judge ruled, as a fact, that the effect of certain statements made by members of An Garda Siochana had “dissipated” by the time the confession was made. This came after his extensive survey of the video evidence. It is difficult to conclude that such a word as dissipation could convey anything other than that there had actually been inducements in the first place. I infer that the Court of Appeal held to similar effect. For the avoidance of any doubt, I would infer, therefore, that the judge held, (and I would interpret his finding as such), to the effect that the words complained of did constitute inducements. At least by implication, the words used by members of An Garda Siochana, objectively viewed, would be capable of amounting to a threat, or a promise. I would conclude, therefore, that the ‘first strand’ of McCann, is satisfied. The words used, seen objectively, were capable of amounting to a threat, or a promise.
79. It is necessary to consider the second and third elements in more detail. Counsel for the appellant now submits that, had the trial judge found that the remarks were objectively capable of amounting to a threat, or a promise, it would follow that the confessions must then be excluded from the jury, unless the prosecution had proved beyond reasonable doubt that the appellant’s confessions were not obtained as a result of those threats or promises. Here he cites Strand 3, which poses the question, was the appellant’s confession, in fact, the result of the threat or promise? Counsel contends, it is impossible to carry out an examination of Strands 2 and 3 in McCann, until it is decided whether the remarks constituted a threat, or a promise, and that if the trial judge had found that the remarks made were capable of amounting to a threat, it would have been “impossible” for him to be satisfied that the effects of these promises had dissipated, or were not acted upon immediately, in the absence of actual evidence of dissipation or motivation. Counsel further submits that the trial judge assumed, or inferred, dissipation from the appellant’s consultation with Mr. O’Donnell, his solicitor, after interview 14, rather than from actual evidence of dissipation.
80. It is then necessary to look next at Strand 2 of McCann, that is, (b) in the terms set out by O’Flaherty J. ( 4 I.R. 397 at 411)
Strand 2 of McCann
81. Did the accused subjectively understand the inducements? The question to be determined by the judge, which arises here, is on whom does the evidential onus lie, as to subjective understanding? There was, of course, the evidence of Mr. O’Donnell’s attempted brokering of a deal that Victoria Gunnery be released. But this cannot be seen in isolation from the evidence that the gardai explicitly rejected the offer. This is set out in the memo referred to in my colleagues’ judgments in more detail. The garda testimony was that to accept the offer would be, necessarily, to render any statement made by way of confession made by the appellant inadmissible in court. The issue of “subjective effect” is canvassed. It is undoubtedly true that there were a number of garda questions and statements in the interviews – and statements from the appellant expressing concern regarding his former partner, and their child. But against that, there were a range of other statements and conduct constituting prima facie evidence in favour of the prosecution case, which suggested an entirely different motivation, that is, regret for the crime. This was most graphically illustrated by the appellant’s gesture with the rosary beads.
82. Clearly, one cannot suggest that there was an onus on the appellant to testify as to his subjective state of mind. There was no such duty. The duty, at all times, lay upon the prosecution to prove each element of the case beyond reasonable doubt. But, once there was prima facie evidence which made out the prosecutions case, one cannot avoid the fact that it was open to the defence to call the appellant at the voir dire, or even to call Mr. O’Donnell. Neither course of action was adopted, undoubtedly for good reason. Instead, there was a significant body of evidence which the trial judge considered was enough for him to conclude that the second strand subjective test in McCann had not been made out. There was no evidence as to the appellant’s ‘subjective understanding’, or as to whether the inducements were understood as such by him. This is in circumstances where there were a range of other factors at play, including the appeal to the appellant’s sense of humanity and regret that the innocent victim was not the intended victim of the murder. This was, again, the video evidence of what the appellant said and did throughout the interviews, and, moreover, the very selective form of confession which he did make. Can it be said there was any evidence which would assist the appellant, on what is essentially a subjective test? I think not. We are again asked to draw different inferences from the trial judge. Hay v. O’Grady  1 I.R. 210 governs the position. I would not be prepared to do so, on the basis of the evidence sought to be relied on.
Strand 3 of McCann
83. The third strand of McCann is also of critical importance. Was the confession, in fact, the result of the threat or promise? Again, one proceeds on the hypothesis that both the trial judge, and the Court of Appeal, did accept, inferentially, that there had been inducements. But, even proceeding on that hypothesis, as advanced by counsel for the appellant, there is a further difficulty. Again, it concerns the subjective effect of inducements. In fact, a very considerable period of time elapsed between the last of the inducements, and the confession. This time was interrupted by consultations with the solicitor, and by the telephone conversation which interrupted Interview 15. The judge was able to assess the issue contextually. In truth, there was no factual evidence available to the judge which would have allowed him to come to a conclusion in favour of the appellant. The test of subjective effect must be more than mere assertion by counsel. Without in any way displacing the onus and standard of proof, there must be some evidential material as to ‘effect’ upon which a judge might act. This might emerge from video evidence of the interview, or words at the interview. The Court was not directed to such evidence. The question of dissipation is one of fact. It was a matter within the province of the trial judge to determine, on the basis of the real evidence before him. His findings were based on real evidence. I do not think they can be disturbed. This ground also must fail.
84. The appellant’s conviction was based upon a confession of his guilt, supported by significant independent evidence. This included a description by the appellant of what happened at the scene of the crime examination of matters unknown to the gardai, and ballistic evidence. The conviction was supported by independent testimony from Ms. Gunnery, to whom he (the appellant) made inculpatory remarks outside the confines of a garda station. It was corroborated by evidence from Ms. April Collins, who was present both when the order was given to the appellant to commit the murder, and the following day when the appellant was challenged as to whether or not he had shot the right man, and when he asserted, incorrectly, that he had. The voluntary nature of the confession was proved to the satisfaction of the trial judge based upon a detailed review of all the evidence, including 20 hours of interview process. There is no basis, under the law, upon which it can be contended that the evidence was inadmissible, or that the trial herein was an unfair one. The appeal herein seeks to extend a legal principle to a situation where it can have no application, and for which there is no evidential support. The second, Damache point, is unsustainable. As to the question of inducements, the trial judge was entitled to reach the conclusions that the effect of inducements made by the gardai had dissipated when the appellant confessed, in circumstances where there was sufficient evidence before him to allow that finding of fact.
85. I would dismiss the appeal therefore.