25
Kearns J.
O’Donovan J.
McKechnie J.
THE COURT OF CRIMINAL APPEAL [C.C.A. No. 36/04 ] BETWEEN THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/RESPONDENT AND
MICHAEL MURPHY APPELLANT JUDGMENT of Mr. Justice Kearns delivered on the 5th day of May, 2005
The appellant was convicted of murder in the Central Criminal Court on 13th February, 2004 and sentenced to life imprisonment. The present application is one for leave to appeal against conviction.
The evidence in this case established that Ms. Bettina Poeschel, a young and healthy German tourist, disappeared on the 26th September, 2001 while travelling on foot between Drogheda and Newgrange where she intended visiting the archaeological site. A massive police hunt was set in train and ultimately the body of Bettina Poeschel was found in a copse by the Donore Road, Drogheda, in the County of Louth on 17th October, 2001. Professor Harbison, then the State Pathologist, gave evidence that the body had been at the particular location for a considerable period, during which time, unfortunately, various scavenging animals had damaged and removed parts of the body. Parts of the structure of the throat were missing so that Professor Harbison could not say how Ms. Poeschel had died. He could not rule out strangulation, but at the same time could not establish a specific cause of death. He gave evidence that the deceased had not survived very long after eating some food before she died. She had not suffered from any chronic disease and he thought that death by natural causes unlikely as the deceased was a young person in good health. He could not say that death occurred where the body was found, but that it was possible that the body had been thrown from the roadway to the position where it was subsequently located. He thought it unlikely that the deceased could have been force- marched to the position where the body was found.
Forensic examination revealed traces of semen in high vaginal swabs taken from the body of the deceased. On 24th October, 2001 the appellant was interviewed by the gardaí in Drogheda and provided a hair sample which, by 26th October, 2001, was known by the gardaí to match the DNA profile found in the swabs taken from the body of the deceased. In the course of being interviewed on 24th October, 2001 the appellant was also shown a photograph of the Bettina Poeschel but denied ever having seen her.
A great deal of other circumstantial evidence had been marshalled by the investigating gardaí, which included the accounts of three Latvian workers for whom the appellant had responsibility in the Drogheda area on the date of disappearance of Bettina Poeschel. They gave evidence that the appellant had left the work site near Drogheda that morning and had told them he was going to visit his doctor with a back complaint. In fact, later evidence established that he did not visit his doctor until the following day. There were other sightings of a motor car which matched the description of the appellant’s motor car in the vicinity of the disappearance on the day in question, and further sightings of a vehicle which matched that description were furnished by three young girls who had seen the vehicle in the vicinity of where the body of Bettina Poeschel was subsequently found. There was further evidence that the appellant had taken bleach or cleaning fluid from his worksite. A cleaning fluid of this nature appeared to have been applied to the deceased’s underwear which was found around her knees where the body lay. The deceased’s trousers, socks, and red shoes were missing from the site, but were later discovered in a skip near Donore Graveyard on the 2nd of November, 2001.
The appellant was arrested at 8.10 am on 27th October, 2001 under s. 4 of the Criminal Law Act, 1997 and was brought to Drogheda Garda Station where he was detained pursuant to the provisions of s. 4 of the Criminal Justice Act, 1984. On that day his initial period of six hours detention was extended by Superintendent Doggett of Drogheda Garda Station, the appellant being ultimately charged within such second period of detention at about 7pm that evening with the murder of Bettina Poeschel.
During the course of his detention, the appellant was interviewed by various members of the Garda Síochána. He also received a visit from and consulted with his solicitor. His answers to various questions put to him are contained in memos of various interviews which, in a form ultimately ruled upon by the trial judge, were permitted to go to the jury.
In the course of these interviews the appellant was advised that semen found in Ms. Bettina Poeschel’s body had been examined and that his DNA was identified from the specimen found in her body and that there was both forensic and circumstantial evidence linking him with Bettina Poeschel. He was asked to explain what had happened on the day of her disappearance. The memo of the interview (exhibit 32) records that the appellant stated:-
“I cant talk about this, just charge me with it.”.
In the course of the afternoon, the appellant received a further visit from his solicitor and shortly afterwards requested to see his girlfriend Samantha Johnson. While he sought a private visit with her, this request was not granted and the exchange between the appellant and Samantha Johnson was recorded as follows:-
Samantha Johnson: “Did you do it?
Michael Murphy: What do you think
S.J. Tell me did you do it?
M.M. I’m sorry Samantha.
S.J. Did you do it, Michael, tell me the truth.
M.M. Don’t raise your voice”.
Samantha Johnson left the interview room at about 4.40 pm. The memo of the relevant interview notes (exhibit 33) records that the appellant was visibly shaken after this visit. The memo of interview then records the following exchanges:-
Q. “Michael will you tell us the full truth about what happened?
A. I’m sorry.”
Prisoner breaks down sobbing with his head in his hands and shaking.
Q. “Tell us what happened?
A. Just tell that girl’s parents I’m sorry for taking her life and what I did to her,
I’m so, so sorry
Q. How did you kill her, Michael?
A.. I don’t want to say anything else about it. I’m just so sorry about it.”
During the trial, the appellant did not give evidence, nor was there any evidence adduced to suggest that these words were not spoken.
Objection was, however, taken at trial to the admissibility of the questions asked and answers allegedly furnished during this detention on a number of grounds.
Firstly it was contended that there was a sufficiency of evidence available to the gardaí at the time of arrest to charge him with murder at that stage. The evidence available consisted of the DNA evidence and the fruits of the other enquiries and investigations undertaken by the garda into the surrounding circumstances. It was thus contended that his detention, and the extension thereof by Superintendent Doggett, was entirely unjustified and unlawful. The justification offered by Superintendent Doggett for the detention and the extension thereof was based on the requirement to search the appellant’s dwelling, to hold an identification parade in which the appellant would be involved, a search of his car and the taking of finger prints and palm prints. The time was also used for the purpose of questioning the appellant.
It was vigorously contested on behalf of the appellant that these further searches or enquires did not require the detention of the appellant and in fact yielded up nothing which added to the investigation or which was relied upon in evidence. A witness who had been involved in the identification parade did not give evidence at the trial. The search of the appellant’s car revealed nothing which advanced the investigation or which was relied upon in evidence. The witnesses who described the appellant’s car simply identified that it was a car of that make and that colour. None of those witnesses, it was submitted, had identified the car as the appellant’s car by reference to either its registration numbers and letters or by any other distinguishing mark. Further, there was no requirement to detain the appellant while Dr. Maureen Smith of the Garda Forensic Science Laboratory prepared a report in relation to the DNA evidence.
It was further contended that any interview of the appellant in the station following his arrest should have been electronically recorded. In this regard the appellant placed reliance upon s. 27 of the Criminal Justice Act, 1984 and the Criminal Justice Act, 1984 (Electronic Recording of Interviews Regulations, 1997, (S.I. No. 74 of 1997)) which came into force on 1st March, 1997.
The evidence in the present case established that electronic recording equipment had been installed in Drogheda Garda Station as of the 26th July, 2001, some three months prior to the date of the interview. While evidence had been given by Inspector Jerry O’Brien that some technical difficulties relating to the way in which the chair and equipment were fitted meant that the equipment was not fully operational until 21st November, 2001, there was also evidence that the two interviewing gardaí from the National Bureau of Criminal Investigation were not trained in the use of the equipment in question until February and March, 2002. On behalf of the appellant it was submitted that no adequate explanation had been offered to explain either why the equipment was not working properly on the occasion in question, or why the relevant officers were not properly trained in how to use the equipment at a time which was some three and half years after the coming into force of the Regulations.
Finally, with regard to this portion of the case, it was further submitted that the trial judge erred in ruling admissible material of a confessional nature which followed the meeting between the accused and his girlfriend Samantha Johnson, when the evidence established that the accused was upset after that meeting. In that regard the appellant relied upon the decision of the Special Criminal Court in The People (D.P.P.) v. Paul Ward (unreported, Special Criminal Court, 27th November, 1998).
After being charged, the appellant was brought before the local District Court and was remanded in custody to Cloverhill Prison until the 2nd November, 2001. On that date, the accused was brought by two gardai from Ronanstown Garda Station from Cloverhill to Drogheda District Court which was then sitting in a local bingo hall which, it appears, had suffered damage by smoke or fire the previous night. As a result, the various adjournments and remands before the court were dealt with early on the day in question. In the case of the appellant, he was again remanded for one week to Cloverhill Prison. Inspector O’Brien attended at the District Court hearing and had a conversation there with the appellant’s solicitor, as a result of which it was agreed that the appellant would sign a document authorising the release of his medical records. After his case had been dealt with, the appellant was accordingly brought by the Ronanstown gardaí to the garda station in Drogheda where he was placed in a cell. This occurred at 10.40 am and the appellant was not released back into the custody of the Ronanstown gardaí for his return to Cloverhill until 3.05 pm.
It was submitted on behalf of the appellant that the Ronanstown gardaí should have retained custody of the appellant and it was not open to them to release the appellant into the custody of the Drogheda gardai, they being the very officers who were concerned with the investigation of the crime of which the appellant stood accused.
The two gardaí from Ronanstown did not give evidence at the trial. However, the warrant issued from the District Court in Drogheda on 2nd November, was addressed to both the Governor of Cloverhill Prison and to the gardaí in Drogheda Garda Station. It appears that after his remand the appellant was brought to Drogheda Garda Station and was initially placed in a cell. Thereafter he was brought to an adjoining or nearby office at 12.25 pm. During the course of being present in this room with Inspector O’Brien, the appellant is said by Inspector O’Brien to have requested something to eat. The appellant had been brought to this room for the purpose of signing the written consent for the release of his medical records. This was duly done when the appellant signed a 10 line handwritten authorisation prepared by Inspector O’Brien. A takeaway meal in the form of chicken and chips was delivered to this room at 12.40 and the appellant was said to have requested that he be allowed to remain in this room to eat the meal rather than be returned to his cell. Following the meal the appellant requested a cigarette and asked to talk to his solicitor in relation to making arrangements for money to be made available to his mother. Inspector O’Brien got a cigarette for the appellant and spoke to the appellant’s solicitor in relation to the other request.
It is contended on behalf of the appellant that these activities of the gardaí in Drogheda Garda Station , particularly those of Inspector O’Brien, amounted to a form of emotional manipulation of the appellant in the hope that his guard would be lowered and that he would be induced to say things which he would not otherwise have said. It is suggested that the appellant at some point made “a spontaneous outburst” which was recorded by the Inspector who then drew Garda Thomas Flynn into the room from the corridor outside and invited him to witness the accuracy of certain notes which Inspector O’Brien had compiled in respect of this ‘outburst’. In the presence of Garda Flynn, Inspector O’Brien read over his note of certain utterances allegedly made by the appellant and Garda Flynn gave evidence that the appellant nodded in agreement in respect of the alleged admissions. These related in particular to the location of Bettina Poeschel’s trousers, socks and shoes. Thereafter the appellant was returned to his cell at 1.40 pm, one hour and fifteen minutes after he left it. It was submitted on behalf of the appellant that it was simply not credible that the requirement to draw up and sign a short written authorisation could, or should have taken anything like this amount of time and that the appellant was clearly manipulated to make the admissions the subject matter of Inspector O’Brien’s evidence.
Three other grounds of complaint were also advanced. Firstly, it was contended that evidence at trial in relation to a back complaint suffered by the appellant was prejudicial rather than probative, that it was irrelevant and should not have been allowed go to the jury. In the absence of clear directions from the trial judge it was argued that it was possible that the jury could have believed that the appellant suffered the injury in the course of some forceful exchange between the accused and the deceased.
It was further submitted that there was no evidence of the cause of death of the Bettina Poeschel, and that the DNA evidence did no more that establish that sexual intercourse between the deceased and the appellant had occurred. It did not exclude the possibility of accidental death thereafter, or the possibility that the deceased had died from natural causes, or indeed been killed by some other person.
Finally, it was suggested that the learned trial judge failed to give the jury adequate assistance to describe DNA evidence, both in its biological and statistical aspects, so as to enable the jury to exercise the appropriate function of a jury in relation to that evidence. Expert witnesses should not, it was submitted, usurp the function of the jury and reliance was placed upon the decision of the Scottish Court of Sessions in Davie v. The Magistrates of Edinburgh [1953] S.C. 34 at p. 40 per Lord Cooper.
The Court will now deal with these various grounds of appeal in the following order.
(1) Electronic Recording of questioning
Section 27 of the Criminal Justice Act, 1984 provides:-(1)The Minister for Justice may by regulations provide for the recording by electronic or other similar means of the questioning of persons by members of the Garda Síochána at Garda Síochána stations or elsewhere in connection with the investigation of offences.
(2) The regulations may be made so as to apply generally or to questioning at such places, to such extent, in relation to such offences or in such circumstances, as may be prescribed therein.
(3) The regulations shall include provision for the preservation, for such time and in such manner as may be prescribed therein, of every recording made in accordance with the regulations.
(4) Any failure to comply with a provision of the regulations shall not by itself render a person liable to civil or criminal proceedings, and (without prejudice to the power of the court to exclude evidence at its discretion) shall not by itself render inadmissible in evidence anything said during such questioning.
As already noted, the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations 1997 came into operation on 1st day of March, 1997.
Article 4 of those Regulations provide:- (1) Subject to paragraph (3), interviews with persons to whom these Regulations apply shall be electronically recorded.
(2) The equipment used in a station shall be the equipment provided to and installed at the station for that purpose and no other equipment shall be used.
(3) An interview or part of an interview is not required to be electronically recorded:-
(a) Where-
(i) The equipment is unavailable due to a functional fault, or
(ii) The equipment is already in use at the time the interview is to commence, and the member in charge considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available, or
(b) Where otherwise the electronic recording of the interview is not practicable.
(4) Where an interview or part of an interview is not recorded for any of the reasons referred in paragraph (3), the member in charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason.
(5) Notwithstanding that an interview is electronically recorded in accordance with these Regulations, regulation 12(11)(b)(i),(ii) and (iii) of the Custody Regulations shall apply as if the interview were not electronically recorded.
As far back as May, 2002, this Court gave the clearest of indications, one might say warnings, that the failure to comply with the spirit and terms of this legislation could reach the stage where a court might be asked to rule unacceptable the tendering in evidence of a confession which has not been recorded.
The legislation outlined above was introduced at a time when convictions recorded in a number of high-profile criminal trials in Britain were under attack and later set aside in circumstances where the evidence leading to conviction had largely consisted of uncorroborated confessions later found to have been compelled, altered or falsified. Widespread concern about such cases was expressed in many quarters and notably in Ireland. Public confidence in the proper administration of justice and in the police is undoubtedly damaged when cases of this nature, often involving the most serious of crimes, occur. That said, there could be no basis in this country for adopting a position of sanctimonious righteousness that problems with confessional evidence occur only in other jurisdictions. One recalls the recent and tragic case of Dean Lyons, who confessed in a police interview to a double murder which he could not have committed. Within the last few months also this court was moved to set aside the only conviction recorded in relation to the Omagh bombing for reasons which related in part to alterations found by the Special Criminal Court to have been made to interview notes ( D.P.P. v Murphy, unreported, Court of Criminal Appeal, 21st January, 2005). In neither of these cases were the interviews electronically recorded.
These remarks should not be taken as lending support to any view that these instances are common or that gardai regularly misbehave in relation to the taking of confessions – on the contrary, it may often be the case that it is the Garda Siochana who themselves are most put at risk by the failure to provide simple and basic electronic equipment which would protect them from the bringing of baseless allegations of ill-treatment or other misbehaviour in or about the taking of confessions.
No sector of our society has a greater interest in maintaining high levels of public confidence in the propriety of police investigations than the Garda Síochana who, by the simple expedient of compliance with the Regulations, can thereby provide a measure of protection for their members against dishonest attacks of this kind if and when they are made. Indeed the regular ‘trial within a trial’ as to the admissibility of confessions which presently arises in virtually every criminal case might well become a far less frequent event if electronic recording of interviews becomes the invariable or normal practice in all garda stations where suspects are interviewed. Any recording made should provide a clear picture or account of everything which transpires at interview. This should render futile many challenges or attacks which might otherwise be made on garda testimony during a criminal trial, reduce the length and cost of trials and contribute to the enhancement of public confidence in the system generally.
In this context it might then be asked if interviewing officers should still be required to make written notes of questions asked and answers given as they proceed with interviews that are being recorded. Having been recorded they could be transcribed to paper later. The present requirement adds greatly to the time required to complete an interview and a correspondingly lengthy period of time to play over the tape to a judge and jury in the trial itself.
One would have thought, therefore, for the reasons outlined earlier, that the provision and installation of the recording equipment specified by the Regulations would be afforded a very high priority.
This case is concerned with events which occurred in October, 2001 some four and half years after the Regulations were introduced and some seventeen years after the enabling legislation was passed. In The People (D.P.P.) v. Connolly [2003] 2 I.R. 1, Hardiman J. stated (at pp. 17/18):- “It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio visual recording of interviews. This is routine in most First World common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made, has ceased to be a mere oddity and is closely approaching the status of an anomaly. It also has the consequence that, in a very high percentage of criminal trials there is a hard fought issue (“the trial within a trial”) as to the admissibility of statements which are often whole or a large part of the prosecution case. Twelve years ago the Martin Committee reported that this situation had virtually ceased in Ontario because of audio visual recording. The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual machinery or that the audio visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.”
That decision was given on the 7th May, 2002, and it is only appropriate to underline that it was handed down some eight months after the events of 27th October, 2001 with which we are now concerned. As against that, a recent decision of the Special Criminal Court (D.P.P. v Kelly, unreported, 26th November, 2004) suggests that past admonitions about the desirability of recording interviews have had little effect .
In that case the defendant had been arrested on 1st July, 2003 under s.30 of the Offences Against the State Act, 1939 on suspicion that he had committed the scheduled offence of unlawful possession of explosives. He was thereafter detained and interviewed. The defence challenged the fairness of the interviews on grounds which included the ground that the accused was subjected to those interviews in a garda station in which video recording of interview facilities was not available. The evidence showed that he could have been brought to a station where such facilities were available. The court held that since the investigating gardai were aware that during his detention the accused would be interviewed about allegations that he was a member of the I.R.A. and that s.2 of the Offences Against the State (Amendment ) Act, 1998 would be invoked, it would be preferable that the interview be video taped. The gardai should have recognised this fact The court stressed that while there was no legal obligation on the gardai to bring the accused to a station in which video taping facilities were available, it nonetheless had grave reservations about the garda failure to bring the accused to a station where such facilities were available.
In delivering the judgment of the court, O’Donovan J. rejected the prosecution submission that a finding that the failure to bring the accused to a garda station with video recording facilities was tantamount to legislating. The court accepted there is no statutory duty to bring a prisoner to a station with video facilities, but said that basic fairness required that, where, as in this case, it was possible to have done so it should have been done. The court held, for other reasons also, that the interviews were tainted with unfairness and the evidence gleaned therefrom should be excluded.
In this case what we can only regard as unsatisfactory evidence was tendered by the prosecution to justify the non-use of equipment which had been installed many months previously. The equipment is stated to have been checked and to have been working correctly in November, 2001. At different points in the evidence, however, conflicting accounts were given on the point whether or not the equipment was actually functioning on 27th October, 2001, being the date of the appellant’s detention. We do not find the excuse or explanation that the chair in the interview room was facing the wrong way, and thus preventing the equipment from being used, to be a particularly good one. Nor was any explanation offered as to why such an obvious problem could not have been addressed between the time the equipment was installed and the events with which we are concerned in October, 2001. Still less is there any adequate explanation for the failure to train the relevant officers in the use of the equipment.
It is also difficult to believe that training would involve any great level of expertise. The Regulations themselves give a clear idea of what is involved. A number of unused blank tapes are provided and, in the sight of the person to be interviewed, they are unwrapped and loaded in the recording device which is set to record. The Regulations go on to deal with the requirement that a caution be given to the person being interviewed and that certain information concerning the name and rank of the member conducting the interview, together with the name and status of any other person present, be stated.
The Regulations go on to describe how the interview should be recorded, interrupted or discontinued depending on particular circumstances. Article 12 provides that at the conclusion of the interview, the member conducting the interview shall inquire of the person interviewed if there is anything further he or she wishes to say or to clarify, that he shall then read back any notes taken in the interview and inquire of the person interviewed if he or she wishes to make any alterations or additions, that he shall record the time, switch off the equipment and remove the tapes. One tape is then sealed with a master tape label and given an identification number. The master tape label is then signed and the person interviewed is asked to sign it also.
Article 13 provides that the member who conducts the interview shall as soon as practicable after the conclusion of the interview give the sealed master tape to the member in charge who will make an appropriate entry into the custody record of the time and date of interview.
We are setting out these provisions for the purpose of underlining that no great degree of complexity is involved in a process which mirrors to a large degree the simple act of recording a programme on television for later viewing.
In the instant case, no entry was made in the custody record to account for the non-operation of the recording system on the day in question. This was a further non-compliance with the statutory regime.
However, after careful consideration, the court has decided to apply s. 27(4) of the Criminal Justice Act, 1984 to hold that the failure to comply with the Regulations in this case should not render inadmissible in evidence the admissions made by the appellant on the 27th October, 2001. The Court has reached this conclusion partly because the events in this case took place in October, 2001, some considerable time before this court handed down judgment in D.P.P. v. Connolly in May, 2002, but also, and more importantly, because no great contest arose in the trial as to what was actually said by the appellant, and, apart from difficulties which are exclusively confined to the events of the 2nd of November, we are satisfied there was no improper pressure, manipulation or threat of any sort adopted or applied by the interviewing gardai during the period of his detention on 27th October, 2001.
However, going forward and for the reasons already given, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice, Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than those circumstances specified in the Regulations themselves. We feel therefore that in respect of station interviews from this point onwards, the court should only exercise its discretion under s.27 (4) for very good reason.
(2) Admissions Made on 27th October, 2001 and the Detention of the Appellant on that date
It is the view of the Court that, at the time of the arrest of the appellant, the evidence fell far short of what would be necessary to sustain a charge of murder against him. Insofar as the DNA evidence is concerned, it established, at best, that the appellant had sexual intercourse with the deceased shortly before or at the time of her death or afterwards. It also gave lie to the assertion by the appellant, after having been shown a photograph of her on the 24th October, 2001, that he never saw the missing German girl . Insofar as the circumstantial evidence is concerned, therefore, the court is of the view that it established no more than that the appellant had an opportunity to kill the deceased. Accordingly, the court is satisfied that, at the time that the appellant was arrested, the arresting officer was quite entitled to do so on the basis of his suspicion that the appellant may have murdered Bettina Poeschel and, not only was there no obligation by law imposed on him to charge the appellant with the offence of murder at that time, it would have been a derogation of his duty had he done so because it would have inhibited the further investigation of the offence of which the appellant was suspected.
In this regard the court refers to an unreported judgment of this court, D.P.P.v O’Toole and Hickey (20th July, 1990) in the course of which Hederman J. stated (at p. 39):-“It is not only the right, but also the duty of gardai investigating the crime of murder, to fully investigate all the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence of the person or persons accused of that crime”
It goes without saying, and was expressly acknowledged in that case, that the lawful questioning of a suspect forms part of that proper investigation.
Insofar as the extension by Superintendent Doggett of the period of the appellant’s detention under the provisions of s. 4 of the Criminal Justice Act, 1984, is concerned, we accept that some of the matters dealt with and attended to that day did not require the detention of the appellant, for example, the requirement to have the appellant’s car identified by certain witnesses. It is equally clear to the court that the appellant’s continuing detention was necessary and appropriate both for the purposes of further questioning and for the purpose of other investigations, such as the identification parade and the requirement to photograph and fingerprint the appellant. Accordingly, the court is satisfied that the extension was lawful and that the fruits of interviews during that extended period were admissible in evidence.
(3) Admissions made following meeting with Samantha Johnson
We have no hesitation in rejecting the ground of appeal which relates to admissions made subsequent to the meeting between the appellant and his girlfriend Samantha Johnson. We are satisfied the accused requested to see his girlfriend and the fact that the appellant had made such a request is recorded on the custody record and signed by the appellant at 4.30 pm on the date in question. That being so the circumstances of the case are utterly different from those so properly condemned by Barr J. in delivering judgment in D.P.P. v. Paul Ward (unreported, Special Criminal Court, 27th November, 1998):-The court is satisfied beyond all reasonable doubt that the visit from Mrs. Ward was a deliberate ploy devised and orchestrated by the police in a final effort to prevail on the accused to disclose what he had done with the gun…. The court is satisfied that the visit was not arranged for any humanitarian purpose but was a cynical ploy which it was hoped might break down the accused and cause him to make what was perceived to be a crucial admission regarding what had happened to the weapon.
As to the visit from Ms. Vanessa Meehan to the accused; the court accepts her evidence that she was successfully subjected to grievous psychological pressure by Detective Sergeant Hanley and perhaps other officers also to assist the police in breaking down the accused who up till then had maintained consistent silence over many interrogation sessions. Both meetings amounted to a conscious and deliberate disregard of the accused's basic constitutional right to fair procedures and treatment while in custody. They constituted deliberate gross violations of the fundamental obligation which the interrogators and their superiors had of conducting their dealings with the accused in accordance with principles of basic fairness and justice.”
We are satisfied in the present case that no such motive can be ascribed to the police officers in respect of the meeting requested by the appellant. Furthermore, it appears that the meeting in question was relatively brief and ended immediately when the appellant so requested. We see no reason therefore to exclude the admissions made by the appellant thereafter.
(4) Admissions made on 2nd November, 2001.
The court is not persuaded that there was anything inherently wrong or unlawful in detaining the appellant at Drogheda Garda Station for some hours following his remand at Drogheda District Court on 2nd November, 2001, or in releasing him into that custody. In the view of the court, it was quite appropriate to do so pending the issue of a warrant from the District Court whereby the appellant would be remanded back to Cloverhill for a further week.
We are also satisfied that ,during his period of detention in the garda station, it was quite in order for Inspector O’Brien to seek the appellant’s signature on the document authorising release of his medical records.
However, the court is not satisfied that it was necessary or appropriate that the Inspector, who was significantly involved in the murder inquiry, should have been alone with the appellant in the office for a period of one hour and fifteen minutes. Clearly, it would not have taken much time, minutes at most, to complete and execute the release form. Accordingly, and while the court does not suggest that Inspector O’Brien offered any improper inducements to the appellant or, as was suggested, that he sought to manipulate the emotions of the appellant, there is, in the view of the court, substance to the suggestion that the inspector hoped that, if he remained in the appellant’s company long enough in the relaxed circumstances then obtaining, the appellant might say something of an incriminating nature, which, in fact, he did. The court believes that the appellant was, on the day and in the particular circumstances, in a position of considerable vulnerability and that the Inspector should have acted differently, that his actions, possibly at an unconscious level, were tactically unfair and took advantage of that unusual level of vulnerability. The court feels that the learned trial judge, for those reasons, should have excluded the admissions made by the appellant which led to the recovery of the trousers, socks and red shoes in the skip near Donore graveyard.
That said, we do not believe the exclusion of that particular evidence, in the form in which it was given, would have affected the jury’s verdict having regard to all the other evidence in the case.
(5) The Back complaint evidence
Equally, the court is satisfied that the evidence in relation to conflicting accounts given by the appellant in respect of the provenance and treatment of his back complaint was admissible. Indeed, no objection was taken to its admissibility and it was clearly relevant as to opportunity. The trial judge in charging the jury accurately recorded the various portions of evidence which were led or given in this respect and said absolutely nothing which could give grounds for any apprehension that the injury in question might have been sustained as a result of some exchange between the deceased and the appellant. This ground of appeal is rejected.
(6) Cause of Death
We are also satisfied that the ground of complaint advanced to the effect that no specific cause of death was ascertained should be rejected. We are satisfied that this ground of appeal is also misconceived.
The question of causation is essentially a factual issue for the jury and there was in the present case abundant evidence from which a virtually irresistible inference could be drawn – if they accepted the other evidence - that the appellant murdered his victim. Bettina Poeschel was in perfectly good health on the day of her disappearance. Her body was subsequently found at a location and in a state of undress which, in conjunction with the evidence of sexual intercourse could have left the jury in little doubt but that she had been murdered either during or immediately after sexual intercourse had taken place. Her trousers, socks and shoes were later found in a skip in Donore Cemetery. Efforts had been made to scrub cleansing fluid into the underwear which she had been wearing. She was found in a state of undress in a location to which she could not have gone voluntarily and indeed there was the clearest of evidence that she could not even have been force-marched into the position of concealment where her body was later found.
All of these pieces of evidence constituted strong circumstantial evidence pointing to the probability that she had been murdered, but the evidence which undoubtedly was capable of carrying the requirement to prove the case beyond reasonable doubt lay in the admission of the appellant “Just tell that girl’s parents I’m sorry for taking her life and what I did to her, I’m so, so sorry”.
The Court has no doubt that there was sufficient evidence for the jury to conclude that the appellant had murdered the deceased, even if, because of the interval of time and the damage caused as a result to the body of the deceased, the precise mechanism whereby she died remains uncertain.
(7) DNA evidence
We are also satisfied that the trial judge adequately explained the DNA evidence to the jury. Largely as a result of objections and interventions by counsel on behalf of the appellant, the witness Dr. Maureen Smith, whose credentials are no longer challenged on this appeal, went into a lengthy and perhaps over- technical explanation of DNA technology in the course of her evidence. However, she carefully explained the statistics and differentiated between points of comparison between the population at large and other groups of people such as siblings. There was no failure therefore, to differentiate between different sample groups, such as has been the subject of criticism in other cases involving DNA evidence.
We are further satisfied that on being requested so to do, the trial judge recalled the jury and gave a simplified and accurate version of the essential requirements of proof in this regard.
The court will dismiss the appeal.
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