THE COURT OF APPEAL
Record No. 99/2013
Birmingham J.
Sheehan J.
Mahon J.
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of Mr. Justice Birmingham delivered on the 12th day of May 2016
1. On the 22nd March, 2013, after a 23 day trial, the appellant was convicted of the murder on the 27th May, 2007, at 46A Fortlawn Park, Blanchardstown, of Ian Tobin. The case presented by the prosecution was that Mr. Ryan had driven the high powered motorbike which had brought the gunman to the crime scene at Fortlawn Park. There the pillion passenger, who was in possession of a shotgun, got off the motorbike and approached the house where a party was taking place and fired through the window.
2. The prosecution contention was that the intention had been to kill Blake Tobin, brother of the deceased, but that the murder victim Ian Tobin, who was not the intended target, was at the wrong place at the wrong time. It is of some significance that the conviction in March 2013, was in fact the second occasion on which a jury had returned a verdict of guilty against Mr. Ryan, as he had been convicted earlier in December 2008, but that conviction was set aside in November 2011, following an appeal to the Court of Criminal Appeal which quashed the conviction and directed a re-trial. The verdict on this occasion was by a 10 - 2 majority.
3. There were essentially two elements to the prosecution case. Admissions by the appellant that he had been the driver of the motorbike and had burned the bike and his clothing after the shooting and evidence from Kevin Whelan, an associate of the appellant and a participant on the witness protection programme. Mr. Whelan was the key prosecution witness and he gave evidence of having discussed with the appellant a previous incident involving one Michael Murray, now deceased, who was alleged to have been the pillion passenger and Blake Tobin which had given rise to ill will or bad blood between them. Mr. Whelan’s evidence was that the appellant had on a number of occasions told him that Mr. Murray was going to kill Blake Tobin and more specifically that Mr. Murray was going to shoot him. The witness’s evidence was that he had a conversation on one occasion with Mr. Murray at the McDonalds Drive-Thru in Blanchardstown when Mr. Murray asked him to help him “get” Blake Tobin. His evidence was that Bryan Ryan was present at McDonalds on the day of that discussion, but that it took place out of his hearing.
4. In addition to the evidence concerning conversations that he had with the appellant prior to the murder, Mr. Whelan gave evidence that was specific to the night of the incident. His evidence was that there were numerous phone calls between him and Bryan Ryan and that these phone calls were made by the appellant who was using a phone belonging to Michael Murray. The prosecution had intended to put evidence in relation to the telephone contact between the Murray/Ryan phone and the Whelan phone before the jury with a view to supporting or corroborating the evidence of Mr. Whelan, but this was excluded by the trial judge after a challenge to its admissibility.
5. The appellant has formulated a large number of grounds of appeal and these have been advanced in written and oral submissions. It is fair to say that not all grounds have been pressed with equal force. Many of the issues now raised on this appeal featured in the original trial in December 2008 and were addressed by the Court of Criminal Appeal in its judgment of the 11th March, 2011. However, the evidence at the first trial and on the re-trial was not identical in every respect, so the conclusions of the Court of Criminal Appeal, while significant, do not bind this Court. The appeal to the Court of Criminal Appeal in 2011 succeeded on one ground and one ground only, namely, that the trial judge had not given an appropriate warning in relation to the fact that Mr. Whelan had been admitted to the witness protection programme and all other grounds were rejected.
6. In summary, the grounds of appeal in this application related to:
(i) The admissibility of confession or admission evidence.
(ii) A ground in relation to the endorsement of an arrest warrant under the provisions of s. 30A of the Offences Against the State Act 1939, as amended, in circumstances where Detective Superintendent Hubert Collins had obtained a warrant to arrest from Judge McMahon in the District Court in Kilmainham and then endorsed the back of the warrant for execution to Sergeant Michael Kennedy.
(iii) That the garda entry to the premises where the appellant was in order to arrest him on foot of a s. 29 Offence Against the State Act warrant was unlawful - this is a “Damache” point.
(iv) Refusal to admit evidence of psychologist - this arises in a situation where the defence had obtained a report from Dr. Kevin Lamb psychologist and were anxious to call him as a witness to give evidence in accordance with the terms of his report.
(v) Refusal to defer evidence of Kevin Whelan - this arises in circumstances where the defence were anxious that the evidence of Kevin Whelan should not be taken until a voir dire in relation to the admissions made while in custody by the appellant had concluded.
(vi) A refusal to allow editing of transcript of interviews. This relates to an exchange between interviewing gardaí and Mr. Ryan after he had made admissions.
(vii) Refusal to put the manslaughter defence to the jury. This arose in circumstances where admissions made by the appellant were so called “mixed” admissions ie. part exculpatory and part inculpatory.
(viii) Refusal to give voice recognition warning. This relates to a request for a voice recognition warning in relation to the evidence of Mr. Whelan that he had a number of telephone conversations with the appellant at or about the time of the murder.
(ix) The complaint about the characterisation of the closing speech of defence counsel as speculation by the trial judge. This arises from the fact that the trial judge when, in the course of his charge, he was telling the jury not to speculate, he gave as an example of speculation, an idea canvassed in the closing speech by the defence that Mr. Whelan might have been the gunman.
(x) The level of participation for a person to be an accomplice. This arises from the fact that the judge when dealing with the issue of participation in a crime and the concept of an accomplice gave as an example of an accomplice that if Mr. Whelan drove the motorcycle to the murder that would render him an accomplice. This arises from a debate at trial about a so called “chicken and egg” scenario which meant that if the jury rejected the admissions made by the appellant then the evidence of Mr. Whelan in respect of which an accomplice warning and a protected witness warning had been given would be uncorroborated. On the other hand if the evidence of Mr. Whelan was not accepted, then the admissions were uncorroborated.
(xi) Failing to administer a Lucas warning.
7. As indicated not all grounds have been pressed with equal force and it is fair to say that at the core of the appeal, is ground 1, which is the contention that the confession or admissions by the appellant which went to the jury should have been excluded from evidence. Linked to and feeding into this is ground 4, relating to the refusal to allow a psychologist give evidence.
8. To put the challenge to the admissions in context, it is necessary to explain that the appellant was first arrested on the 30th May, 2007, and during the period of detention that followed, was interviewed on nine occasions, the first such interview taking place between 20.02 and 21.00 hours on the 30th May, 2007, and the final interview of that detention on the 3rd June, 2007, between 13.59 and 16.46. The unusually lengthy period between the first and last interview is explained by the fact that during the course of that detention the appellant persuaded, “codded” is the word that has been used, a doctor who came to the garda station to prescribe methadone and sleeping tablets. It seems that Mr. Ryan overdosed on these and required hospitalisation.
9. Some seventeen days after his release at the end of the first period of detention, the appellant was re-arrested on foot of a warrant pursuant to s. 30(a) Offence Against the State Act 1939 and in the course of this detention was interviewed on six occasions, the first such interview taking place between 15.04 and 16.35 on the 20th June, 2007 and the last interview of the detention between 11.37 and 12.33 on the 21st June, 2007.
10. No admissions were made during the first period of detention, but certain admissions were made during the third, fourth and fifth interviews of the second detention period. In the course of the final interview of the second detention the admissions made earlier were repudiated.
11. However, only admissions made during a portion of interview 5 of the second detention, an interview that commenced at 8.26 am and finished at 10.42 am on the 21st June, 2007, were admitted. The admissions that are now of critical importance were made during the section of the penultimate interview between 9.36 am and 10.42 am.
12. The challenge to the admissibility is itself based on a number of sub grounds which might be summarised as follows:-
(i) Denial of a level of access to a solicitor which would be reasonable and adequate.
(ii) Minimal standards of fairness were not observed at the interview giving rise to oppression and to the fact that the admissions cannot be said to be voluntary.
(iii) The interviews must be considered cumulatively and irregularities at earlier interviews, including interviews of the first detention period continued to impact on the appellant and there was a causative link between earlier irregularities and the admissions eventually made including those which were admitted in evidence.
13. While the arguments advanced were structured around these subgrounds there was a significant element overlap in that it is said that the gardaí would not have been in a position to engage in the unfair tactics that it is alleged that they did had a solicitor been present for interview.
Access to a solicitor
14. During the course of the second detention period admissions were made during interview 3, conducted between 19.35 and 21.11 on the 20th June, 2007, interview 4, conducted on the 20th June, 2007, between 22.14 and 22.57 and interview 5, on the 21st June, 2007, between 8.26 and 10.42 followed by a reversal of position at the interview which commenced at 11.37 am, the final interview. It was accepted by the prosecution, as it had been during the first trial that there were breaches of constitutional rights of access to a solicitor in relation to interviews 3 and 4, as these interviews proceeded to a conclusion despite requests for a solicitor. The prosecution argued successfully that a portion of the penultimate interview, being the section after 9.36 am should be admitted in evidence. The distinction sought to be drawn between the admissions during this period and the other earlier admissions which the prosecution did not seek to have put in evidence was that during the course of this interview, the appellant had access to a solicitor and made admissions thereafter. The contact during that crucial interview came about as a result of a telephone call to the station from his solicitor. It was a brief one lasting no more than 85 seconds and its brevity is reflected by the fact that the tape in the interview room remained running and was not turned off. However, it is said by the prosecution that this is a situation where quality is more important than quantity or duration. The solicitor with whom he was in contact with during both periods of detention was one nominated by him. The solicitor in question is very experienced and very highly regarded and the appellant indicated that he had known the solicitor for years and indeed that the person had been his solicitor since he was a child. The duration of the contact felt to be necessary by Mr. Ryan and by his solicitor has to be seen in that context. No suggestion is made or is there any basis for suggesting that the gardaí limited or curtailed the phone call in any way. If the appellant wanted longer contact with his solicitor all he had to do was remain on the line.
15. The sequence of events with which we are concerned is that the appellant was brought to Blanchardstown garda station on the 20th June, 2007, following on his arrest. He arrived there at about 1.10 pm and was processed in the ordinary way by the member in charge Sergeant Peter Burke. Sergeant Burke’ evidence was that Mr. Ryan requested at 1.30 pm that contact be made with Messrs Hanahoe Solicitors, that a call was made to that firm and that the call was returned by Hanahoes at approximately 1.36 pm and that the appellant then spoke with his solicitor for some three minutes approximately between 1.38 pm and 1.41 pm.
16. There was further contact that afternoon of the 20th June, when his solicitor rang the garda station at 4.30 pm requesting to speak to the appellant. There was a telephone call back to the solicitor some five minutes later and the appellant availed of another opportunity to speak to his solicitor. The precise duration of this telephone contact is not very clear, but it seems to have been a fairly brief call, probably not more than a couple of minutes.
17. In the course of the third interview of this detention session which commenced at 7.30 pm on the 20th June, 2007, the appellant did make admissions. However, these admissions were made after he sought further access to his solicitor, a request that was not acted upon nor was it one which was brought to the attention of the member in charge. It was this failure to take action upon the request for a solicitor that led to the prosecution conceding that the admissions were taken in breach of the appellant’s right of access to a lawyer and could not be put before the jury. However, the prosecution say that what occurred was highly relevant when it comes to addressing the questions of voluntariness or oppression in relation to these and more importantly, in the context of the trial and appeal, what was said at later interviews in that the admissions came after he was informed of the contents of the statement that had been made by Mr. Whelan. The prosecution have described the fact of putting the contents of the Whelan statement to Mr. Ryan as the “game changer”. Indeed, it must be said they received some significant support for that contention from the evidence of Mr. Ryan during the voir dire. His direct evidence was that the worse thing that had happened to him during his detention was hearing what Kevin Whelan had to say.
18. There was a further interview on the evening of the 20th June, 2007, which commenced at 22.14. However, while once more admissions were made during the course of this interview, there was no change in relation to the position about access to a solicitor and the request made during the earlier interview that evening remained unacted upon.
19. The following morning Sergeant Burke was once more on duty as member in charge. He gave evidence that when the applicant was being taken to the interview room at about 8.24 am on the morning of the 21st June, 2007, that he spoke to the appellant and that Mr. Ryan did not request a solicitor. Sergeant Burke said that the detainee confirmed he understood that there was an interview going to take place and he had no request. The view was taken that the discussions on the way to the interview room with Sergeant Burke did not alter the situation and so the contents of the early part of the interview were not put in evidence. Then, at about 9.36 am, Hanahoes Solicitors rang Blanchardstown garda station once more. Sergeant Burke went to the interview room where the appellant was being interviewed, in order to inform him that his solicitor was on the phone. The appellant said that he wished to speak with his solicitor and Sergeant Burke took the appellant from the interview room to the telephone where he had a conversation. There was some dispute at trial as to whether that conversation was in private as Sergeant Burke firmly maintained had been the position. The trial judge resolved this issue in favour of the prosecution and found as a fact that the conversation was indeed in private and this Court is bound by that finding for which there was ample evidence. Following the phone conversation the appellant was brought back into the interview room where the interview re-started and continued for approximately one hour more. When he was brought back to the interview room he was spoken to by Sergeant Burke. There, Sergeant Burke inquired of the appellant, whom he addressed by his first name, whether he was happy with the contact and the appellant responded in the affirmative. The Court understands that the quality of the audio recording of this exchange is not high, perhaps because Sergeant Burke was speaking from at or near the door and the microphones are designed to pick up and record conversations between persons sitting at either side of the table. However, the thrust of the exchange is not in doubt.
20. The interview then proceeded with admissions being made. There was one final interview, the sixth of the detention session, which commenced at 11.37 am. Once more there were admissions made, but these were not put in evidence. That was in a situation where at 11.41 am the appellant said: “Before you start, there is something I want to tell you, but I will have to see my solicitor first”. The guard, who was keeping a note, responded: “You want to tell me about something?” to which the appellant responded: “I want to tell you something but I will have to see my solicitor first”. Detective Garda McDevitt, one of those conducting the interview then said: “Well I have to keep going anyway until your solicitor gets here, alright? What time did you say he’ll be here at?” and this drew the response: “He said he would be here this morning sometime?” The guard then said: “Is he in court?” to which the appellant responded: “I don’t know. I was just on the phone to him there this morning and I asked him was he coming and he said he would be into me this morning. I don’t think I should go on until I do see him, because I have something else to tell yous, you know?” “Did you want to tell us more in relation to what you are here for: you have more or less told us everything?” The appellant then went on to say: “I have said things, but all of it is not true, and I have more or less being put to saying things as well. I have been told to say things and put my hand up to things, otherwise it is going to fall back on my family. That’s why I wanted to see a solicitor yesterday. Now”. Detective Garda McDevitt asked: “You spoke to your solicitor yesterday?” and the appellant answered: “yeah, on the phone. He was just saying ‘how are you getting on?’ and all. I was just saying I was in here. I didn’t saying anything to my solicitor about . . . (inaudible)”. While the admissions made in the final interview were not put in evidence, it is nonetheless an interview to which the prosecution attach considerable significance. They say that the fact that he was seeking a solicitor at the start of this interview shows that had he wanted more contact with his solicitor during the earlier interview that morning that he was well capable of asking for it. Again, the prosecution say that the fact that the appellant recanted admissions that he had made gives the lie to the suggestion that he was by this stage a broken man whose free will had been sapped.
21. At the conclusion of the evidence on the voir dire, the trial judge heard detailed submissions, including submissions on behalf of the appellant as to the relevance of the jurisprudence of the European Court of Human Rights. At that stage, counsel for the then accused contended, as he now contends, that it is self evident that a phone call lasting less than a minute and a half could not possibly be regarded as vindicating his client’s constitutional right to reasonable access to a solicitor. Certainly, the contact on that morning was brief, but it must be appreciated that this was the third call involving the appellant and his solicitor. It is true that the other calls were also relatively brief, but there is no suggestion that the gardaí terminated any of the calls or in any way limited their duration. Neither was there any suggestion that there was any inhibition placed in the way of Mr. Ryan’s solicitor visiting him while in custody. In a situation where the appellant had previous experience of detentions including a detention under s. 30 of the Offences Against the State Act, had a long standing relationship with his solicitor, was indicating that he was content with the contact that he had had when he returned to the interview room, it was open to the trial judge to conclude that this telephone contact differentiated what would happen subsequently in that interview from the earlier interviews. The position might be quite different if the interview was taking a new direction, such as by the invocation of statutory inference provisions for the first time at that stage. The trial judge in this case having heard evidence on the issue in effect reached the same conclusion as his colleague had done in the earlier trial. Unlike White J. in the first trial and McCarthy J. in this trial, the Court has not seen the evidence given on the issue by the various interviewers and the evidence of the appellant. In addition, in this case, the trial judge viewed in their entirety the tapes of the 15 interviews conducted over the two detentions. This must have been very helpful in assisting him to form a view on the dynamics of the detentions. It goes without saying that insofar as there are disputed issues of fact to be resolved the trial judge is in an infinitely better position to determine them than is this Court.
22. The appellant has referred to the decisions of the Supreme Court decision in DPP v. Raymond Gormley [2014] IESC 17 and to the decisions of the European Court of Human Rights in Salduz v. Turkey (2009) 49 EHRR 19 and Dayanan v. Turkey [2009] ECHR 2278. However, in the Court’s view these decisions are of limited relevance. Gormley involved a case where a suspect was interviewed and made admissions before he had any access whatever to a lawyer and that in a situation where the gardaí were aware that the lawyer was making his way to the station. Again, Salduz was a case that involved complete denial of access to a lawyer. In Dayanan the applicant was arrested and taken into police custody. He was informed of his right to remain silent and to see a lawyer at the end of the police custody period. (Emphasis added). In the present case the appellant was entitled to have his lawyer attend on him at the police station at any time. If the client or the solicitor felt that there was a necessity to check the conditions of the detention, or to support the accused in distress had he been in distress, or to prepare for questioning, all these being tasks which it is said that a lawyer visiting can perform, all of those things could have been done. However, there was no visit to the station even though there was nothing whatever preventing it. One must conclude that the reason that there was no visit, was because neither solicitor nor client, who knew each other so well felt that it would have been helpful or still less felt that it was necessary.
Oppression. Lack of voluntariness and lack of fairness
23. Moving on to the issues raised in relation to oppression, lack of voluntariness and lack of fairness because of improper questioning. Under this heading, the appellant has formulated a very large number of complaints, though many of these relate to the first period in detention. These were issues that were canvassed in very considerable detail in the Central Criminal Court. The accused gave evidence on his own behalf during the course of a voir dire and the judge also heard from the various gardaí who had an involvement with the appellant during the course of his detentions. In addition, as we have seen, the trial judge viewed the tapes of interview in their entirety. The issues raised are quintessentially matters of keenly disputed fact and the appellant is in a difficult position in trying to persuade this Court that the trial judge, who was in so much better a position to deal with this issue, erred. See in that regard cases such as the S.S. Gairloch [1899] 2 I.R. 1; Hay v. O’Grady [1992] 1 I.R. 210 and People v. Madden [1977] I.R. 336 and see also the recent restatements by this Court of the continuing relevance of that line of jurisprudence in People v. Doyle [2015] IECA 109; People v. Campion [2015] IECA 190 and People v. Campion (No. 2) [2015] IECA 274.
24. Decisions as to whether conduct is oppressive and whether the free will of the detainee has been overborne are very fact specific. The occasions when an appeal court would feel in a position to reach a conclusion different to that reached by trial judge are likely to be exceptional. Taken collectively, the specific instances complained of as amounting to oppression would, if upheld, confine gardaí to asking the same questions in the same tone of voice and no doubt obtaining the same results. According to himself, the strategy which the appellant found had most impact on him over the course of the two interviews, were the references to his family. He was told about the effect of the murder allegations and what the impact was likely to be on his partner and young daughter. There were also references to his parents, and to his deceased twin brother. In the view of the Court these did not amount to any form of threat or improper inducement, rather they are appeals to Mr. Ryan’s better sense of human nature. The criticisms made of gardaí in this respect by the appellant echoed those that were made in the case of DPP v Doyle [2015] IECA 109. There is, though the highly relevant distinction that in the case of Doyle, the accused’s girlfriend was being questioned in another garda station at the same time, to that extent this can be seen as a weaker case seen from the defence perspective. What this Court had to say in relation to the garda tactics in Doyle is very much on point. The Court commented on the tactics there employed as follows:-
“The gardaí in these transcripts are recorded as endeavouring to get Mr. Doyle to engage with them. Obviously, they wanted him to tell what he knew about the murder of Shane Geoghegan. They appealed to his sense of sympathy for the Geoghegan family. They actually appealed to his sense of morality. They suggested that he could not be proud of the situation in life to which he had sunk as they invited him to see it.”
25. On behalf of the appellant, it is said that he was deliberately misled as to the factual position and the extent of evidence available in order to obtain admissions from him by way of acceptance of certain scenarios that were put to him. It is said that this included references being made to CCTV footage and telephone evidence that were either grossly exaggerated or did not exist and to witnesses who were never produced. Again, it is said that the interviewers claimed that the appellant had had a fight the night before the incident with the intended target, whereas in fact the incident in question had taken place two years earlier. It is said that the appellant was told that he had admitted to being present at the scene of the murder when he had not and was wrongly told that he had been placed by a key witness in a key conversation planning the murder. The point is made that these misleading pieces of information were presented by gardaí who were assuring him that they could be trusted and that what they had to say was “gospel”.
26. Closer examination of the areas where it is suggested that there was deliberate and material misleading does not support the criticism. Contrary to what is submitted, the appellant was not told that he had been identified on CCTV. Rather, he was reminded about the fact that CCTV cameras are widespread and that he should consider that. It is true that the appellant was being asked, at least by implication to consider the possibility that he might have been caught on CCTV and that there might be footage which would allow an identification being made. Cameras are now so ubiquitous that anyone who has engaged in wrongdoing has to consider the possibility that they have been filmed. Reminding the interviewee of the existence of CCTV and that CCTV can be a powerful tool in the hands of garda investigators, as was done in this case, did not overstep the bounds of propriety.
27. The appellant has complained that the gardaí had suggested that what was in reality a historic incident had taken place only hours before the murder. There is no doubt that the gardaí were effectively wrong about when the incident involving the appellant and Blake Tobin had occurred, but nobody knew that better than the appellant as was shown by the firmness of his response when he replied: “That’s bollix. I had only one fight with Blake Tobin and that was two years ago. The copper had it wrong”. Whoever else might have been confused about this issue and there does seem to be have been a degree of confusion, the only people who could not have been confused were Bryan Ryan and Blake Tobin, the participants in the row.
28. The appellant complains about the fact that the telephone evidence was overstated. There was evidence available at the trial, but not admitted, of contact between the Murray/Ryan phone and the Whelan phone. However cell phone analysis in relation to the locations from which the phones was being used did not form any part of the prosecution case. Again, it seems to this Court that the gardaí were entitled to outline the nature of the case that they expected to be in a position to mount. The complaint about overstating the telephone evidence has to be seen in the context of the fact that protected witness Whelan had himself been at 46A Fortlawn Park, and his evidence at trial was that in the course of one of the phone calls which he had received from Mr. Ryan that the appellant had told him that he could be seen leaving the house and it was indeed the case that Mr Whelan was leaving the house at that stage. Therefore, what was said by Mr. Ryan in the course of that conversation had the effect of putting the Ryan/Murray phone in Fortlawn Park. It has to be acknowledged though, that this falls short of the independent verification that might have been provided by cell phone analysis. It is very widely known that cell phone analysis tending to put a particular phone and by extension the user linked with that phone at a particular location has been a significant feature of a number of high profile murder trials. Again the Court does not believe that the bounds of propriety were overstepped by the gardaí in pointing out the potential significance of telephone evidence.
29. There is further criticism of how the McDonalds Drive Thru meeting was dealt with. Mr. Whelan’s evidence was that the conversation that he had with Mr. Murray was on an occasion that Bryan Ryan was present, but that it was not within Mr. Ryan’s hearing and it is said that this was not clear and that indeed on the contrary the impression was given that the gardaí believed Mr. Ryan was a party to the conversation. Again the criticism somewhat overstates what was actually said by the gardaí. The issue was raised during the course of the first interview of the second detention. There gardaí said “We know Gillian stayed in the car. You and Mike (Michael Murray) got out and spoke to Kevin Whelan”. Certainly there was nothing to stop the gardaí adding “We realise that you weren’t a party to the full conversation”, but there was no obligation to do so and certainly it cannot be said that the failure to do so impacted on the overall fairness of the procedures. .
30. With all respect to the industry that was clearly deployed in preparing these submissions which were advanced at trial and have been repeated now the question is not whether a particular question could have been framed differently, or a particular proposition formulated differently. The gardaí were entitled to make the point that they were convinced of the involvement of Mr. Ryan and that they would be in a position to mount a case against him and that Mr. Ryan was in a difficult position. It is noteworthy that Mr. Ryan himself accepts that his most difficult moment in custody was when he was informed about what Mr. Whelan had to say. When Mr. Ryan learnt that his associate was co-operating with the gardaí and was implicating him in the matter, his situation became very difficult indeed.
31. The complaint is made on behalf of the appellant that he was subjected to misleading and incorrect legal advice which emanated from the gardaí. In essence the point made is that it was suggested to him that the strength of the case against him was such that he was facing the prospect of being convicted of murder, whereas if he answered questions, he could give an account which would reduce his involvement to that of manslaughter. However, this argument ignores the fact that if the admissions that he made were taken in isolation, and accepted at face value, he would not have been convicted of murder or manslaughter because his account was that he believed that Mr. Murray was only going to frighten Blake Tobin. It is said the most serious misdirection was that he was effectively told that if he did not provide an explanation consistent with manslaughter during his detention that he would be precluded from relying on this partial defence at trial. It is true that certain remarks made by interviewers are capable of being interpreted and this seems the more likely interpretation, though they are also capable of being interpreted as indicating that an account offered for the first time at trial consistent with manslaughter, will carry less weight or less credibility than it would if the account was given at an early stage and the position maintained throughout. However, more fundamentally the difficulty for the appellant is that there is no indication whatever that this caused him to make the admissions that he did.
32. The trial which has just given rise to the present appeal differed from the first trial in one very significant respect. In the first trial all of the focus of attention was on the second detention period during which admissions were made. However, in the second trial attention was also focused on what had occurred during the first detention. On behalf of the appellant it was argued that notwithstanding the time gap between the two detentions that the first period in custody continued to impact on Mr. Ryan. The trial judge dealt with this issue in the course of his ruling on the application to exclude evidence which he delivered on day 16, of the trial, the 112th March, 2013. He commented:
“Now I have taken the view that there is, as it were, a severance between the - apart from the severance in point of time, so to speak between the first interview process on the first arrest and the second. Any ill effects, I think of the first were, if there were any, were well and truly spent by the time of the second arrest.”
33. The conclusion reached by the trial judge in that regard was a conclusion that was manifestly open to him to reach. The judge who had viewed all of the tapes of interviews commented:
“It’s perfectly plain, looking at all of the tapes from both the first interview (of the first detention period) and/or to the last and both periods of custody, that that accused was well able to vindicate his rights. He proved himself well capable of robustly defending his position, so to speak in terms of the decisions, for example to make no comment when particular propositions or questions have been put to him.”
He found as a fact that Mr. Ryan was not oppressed, the admissions were not involuntary ones and that his treatment in custody did not fall below accepted standards of fairness.
34. The conclusions reached by the trial judge coincided with the views of the trial judge in the first trial. The decision of both trial judges involved findings of fact with which this Court is not in a position to interfere.
35. Trial judges are required to consider issues of this nature when raised in the round and to identify whether the prosecution has established beyond reasonable doubt that the procedures followed did not fall below the standards of fundamental fairness and whether the prosecution has established that the admissions were not obtained as a result of oppression and were voluntary. In that regard, the exercise on which the defence have embarked in this case with such industry of isolating particular questions and exchanges may not be particularly helpful. When it comes to forming a view in relation to the overall picture that emerges, the background and life history of the detainee will be highly relevant. There is a distinction to be drawn between the position of a callow youth or a frail older person on the one hand and the position of a strong willed robust individual on the other hand.
36. Accordingly, the Court rejects those grounds of appeal that challenged the decision to admit in evidence admissions made as involuntary, or the subject of oppression or unfairness.
The causal link
37. Counsel for the defence was dismissive of the suggestion that once admissions had been forthcoming on the night of the 20th June that there was no connection between that fact and that further admissions on the morning of the 21st June. Counsel referred to the case of People (DPP) v. A.D. [2012] 2 I.R. 332, which is authority for the proposition that even if there was no causal link, that the judge had a discretion to exclude the evidence of the admissions and to admit them would be unfair or might give a misleading impression to the jury because of what had happened in the inadmissible interviews. Counsel points out that the impugned portion of the penultimate interview begins with what was clearly a reference to what was said in previous interviews:
“Bryan, just in relation to what you told us about the shooting on the 27th May, 2007, if you had drove off without the person who carried out the shooting what would have happened to you.”
38. He contends that after that introduction matters which had been discussed at earlier interviews and issues which had been accepted by the appellant in the course of these interviews were now further discussed. The trial judge took the view that it was not a question of what had been said at the earlier interviews forming the building blocks for the key interview, but rather that references such as “just going back to where the bike was burned” and: “Bryan just in relation to what you told us about the shooting on the 27th May, 2007, if you had drove off without the person who carried out the shooting what would have happened to you?” He took the view that these references were merely indicative of a reversion to a subject and that there were no intertwining of issues or overarching connections between the various interviews, such as would make an admission of part of the interview on the morning of the 21st June unfair or misleading. The memo was edited slightly so that the fact of an earlier undisclosed interview would not be apparent. This Court notes that the conclusions reached by the trial judge in the present case accorded with the views of the Court of Criminal Appeal on this issue in the first appeal. Again, in the view of the Court, this was a conclusion that the judge was fully entitled to reach. The Court is not at all convinced by the suggestion that greater headway was made in this voir dire before McCarthy J. than had been previously in that a prosecution witness, Detective Garda Patrick Traynor, was prepared to accept that on the morning of the 21st June he and his colleague began by asking Mr. Ryan about various matters that had been discussed the previous day. As the extracts already quoted show, there were references to issues discussed, but the question was, as the trial judge correctly identified whether this was merely a reversion to a subject or whether the interaction of the interviews were such as to make admissions of the 21st June interview unfair or misleading.
Endorsement of the arrest warrant
39. This point arises in circumstances where Detective Superintendent Hubert Collins had applied to Judge McMahon at Kilmainham District Court for a warrant pursuant to the provisions of s. 30A of the Offences Against the State Act 1939, as amended, in order to arrest the now appellant, Mr. Bryan Ryan. The judge issued the warrant sought and upon receiving the warrant Detective Superintendent Collins endorsed the warrant over to Sergeant Michael Kennedy for execution. The point made is that the warrant authorised Superintendent Collins and only Superintendent Collins to carry out the arrest. A similar argument was advanced by the appellant in the case of DPP v. Marcus Kirwan [2015] IECA 228 but was rejected. The Court concluded that statutory authority for the procedure followed was provided by s. 194 of the Criminal Justice Act 2006, as well as under the Petty Sessions (Ireland) Act 1851. The Court went on to comment that even if there was any doubt as to whether the Petty Sessions (Ireland) Act 1851 or the Criminal Justice Act 2006, provided sufficient statutory authorisation for the procedure that was followed that would not have availed the appellant as it was clear that neither the Detective Superintendent who had applied for the warrant nor the Detective Sergeant who made the arrest when the warrant was endorsed to him for execution were engaged in a conscious and deliberate violation of Mr. Kirwan’s constitutional rights, rather they were following a practice that had, as the appellants specifically acknowledged, applied for centuries. Those observations apply with equal force in the present case and the Court rejects this ground of appeal.
Refusal to admit the evidence of a psychologist
40. The defence were anxious to call a psychologist Kevin Lambe as part of the defence case on the voir dire. Their interest in doing this was prompted by the outcome of the previous appeal to the Court of Criminal Appeal. The appellant drew attention to a paragraph in the Court of Criminal Appeal judgment was follows:-
“The Court considers that there is no evidence of a causative link, whether general or specific, between admissions made while the conditions of the applicant's detention were unlawful and those made subsequently while they were lawful.
In effect, this Court has been invited to conclude that there was such a causative link based upon ‘human psychology’ as it was put. The suggestion that such a link must exist is put forward as if it were a proposition so obvious that the Court should adopt it without any need for evidence, and as though judicial notice ought to be taken of it as being a fact not reasonably disputable on the basis of common sense and experience. This Court does not consider that this follows at all in the circumstances of this case. Each case must depend upon its own facts. In some cases a causative link may exist; in others it may not.”
41. The appellant submitted that it was not within the expertise of a judge to assess the psychological effects of interrogation techniques and the true toll and effect of all the matters complained of and that the observations of the Court of Criminal Appeal established how essential it was that the court should be assisted by the expert evidence of a psychologist.
42. The prosecution opposed the calling of Dr. Lambe, contending that there was nothing which demanded or required the evidence of an expert and that in fact all of the matters that required to be ruled upon fell within the sphere of ordinary human experience. Issues in relation to voluntariness, oppression and linked issues they pointed out have long been decided by judges.
43. The prosecution submitted at trial and again on this appeal that to have admitted such evidence at trial in support of the proposition that “everything which happened may well have had a subliminal effect on the appellant” is precisely the dangerous extension of scientific expert evidence that the courts have cautioned against on many occasions. In the view of the court issues as to voluntariness and oppression are quintessentially matters for the judge in the case. The observations of Lord Hobhouse of Wood-Borough in the case of R. v. Pendleton [2002] 1 WLR 72 are apposite, there he commented:-
“Finally, I would sound two notes of warning. The first is that the courts should be cautious about admitting evidence from psychologists, however eminent, as to the credibility of witnesses. The assessment of the truth of verbal evidence is save in a very small number of exceptional circumstances a matter for the jury. The suggestibility of some persons is well within the experience of the ordinary members of juries. To admit evidence from psychologists on such questions is not only contrary to the established rules of evidence, but is also contrary to the principle of trial by jury and risks substituting trial by expert. The present case illustrates this danger with expert witnesses of unimpeachable reputation and probity being led into expressing their own belief as to whether they would rely on certain evidence, they having formed and taken into account disputable views about other purely factual aspects of the case as well -e.g., the way in which the interviews were conducted.”
44. The approach suggested by Lord Hobhouse is consistent with the traditional approach of the Irish courts. In the case of People v. Kehoe [1992] ILRM 481, the accused’s defence to a charge of murder was one of provocation. In support of that defence, a psychiatrist gave evidence relating to the accused’s emotional state at the time of the killing. His evidence was to the effect that he had a great deal of experience with people who had been through emotional upset and therefore he was in a position to give a clinical pronouncement on the reality of the accused’s defence. The Court of Criminal Appeal was of the view that this was not a case for the admission of psychiatric evidence. It observed that as far as criminal cases are concerned, such evidence is properly to be confined to matters such as insanity.
45. In the view of the Court this was not a case for admitting the evidence of a psychologist and this Court endorses the approach taken by the trial judge.
Refusal to defer evidence of Kevin Whelan
46. The prosecution intended to call Kevin Whelan to give evidence early in the trial and before what was expected to be a lengthy voir dire dealing with the disputed admissions. The defence were very unhappy with this proposal pointing out that there were two main limbs to the prosecution case, the evidence of Kevin Whelan and the admissions, the admissibility of which was very much in issue. The defence contended that it was unreasonable for them to have to conduct the cross examination of Kevin Whelan without knowing whether the admissions would be admitted in evidence.
47. In the Court’s view it was for the prosecution to decide in what order they would call their evidence. In a particular case there may be challenges to several aspects of the evidence. The defence are on notice of the evidence that the prosecution intend to adduce. The defence are also aware of which aspects of the evidence they intend to challenge and how strong are the grounds for challenge. In this case the defence were anxious to see the evidence of Mr. Whelan deferred, but on another occasion, another defence team might want to defer the voir dire to see whether Mr. Whelan would actually give evidence in accordance with his witness statement and if he did how convincing or otherwise he would be. The fundamental point is that it is not open to one side to tell the other how they should organise their case and, generally speaking it is not open to one side to insist on the other side’s evidence being called in a particular order. Accordingly, this ground of appeal fails.
Refusal to allow editing of transcript of an interview
48. This point relates to one specific exchange between gardaí and the appellant. The exchange in issue was as follows. The appellant said “I’m looking at the rest of my life in prison as well”. The interviewing garda responded “well, Bryan, whatever it is you know, living with it in secret, you know it’s a lot harder to do . . . its an awful burden to have on yourself isn’t it”. The appellant then answered “yeah”. The prosecution contended that while in other circumstances the commentary by gardaí and the expression of opinion might be of little probative value, here the reply which it elicited was a very valuable admission. It is the view of this Court that the response to what was said by the gardaí was of some probative value. Moreover, in the context of the trial, the views expressed by the gardaí are not particularly significant or particularly surprising. The material sought to be excluded was simply the expression of an opinion which drew a response. That is in stark contrast with remarks that are clearly prejudicial and where any probative value is exceeded by its prejudicial effect such as a reference to the fact of an interviewee being charged in the past or something of that nature.
49. In the Court’s view, the judge acted properly in permitting this evidence to go before the jury and this ground of appeal is refused.
Refusal by the trial judge to put the manslaughter defence to the jury.
50. Counsel for the appellant argued that if the jury were to reject the appellant’s evidence in court and were to accept his admissions in the garda station as being truthful, it could come to the conclusion that while the appellant was present in Fortlawn Park, he did not know the full extent of the intention of his passenger and accordingly that he was involved in an unlawful act which fell short of an intention to cause serious harm. Counsel contended that in these circumstances it would have been appropriate to leave manslaughter to the jury. It was conceded on behalf of the prosecution that absent the evidence of Kevin Whelan the requisite evidence in relation to the mental element for murder would be lacking.
51. The difficulty for the appellant is that there was no evidence which would have provided a basis for the return of a manslaughter verdict. The evidence of Kevin Whelan if accepted clearly implicated the appellant in the offence of murder. In interview the appellant denied knowledge of the fact that the pillion passenger was equipped with a firearm. There was simply no evidence from any source that the appellant knew that his passenger had a firearm, but believed that it was being brought to the scene for some limited purpose such as to threaten or intimidate. The jury was told correctly, that the appellant was not guilty of murder if it was the situation that he did not know that the person that he drove to the scene of the crime intended to kill, and thought that they were going there in order for the passenger to frighten or something of that nature. An intention to merely frighten Blake Tobin would not see a conviction for either murder or manslaughter.
Refusal to give a voice recognition warning.
52. This ground relates to the extensive telephone contact that Mr. Whelan said he had with the appellant at or around the time of the offence. In the circumstances of the case, the Court is satisfied that there is no reality to this ground. Mr. Whelan and Mr. Ryan were known to each other over many years and according to Mr. Whelan had a number of conversations with one another during the course of the telephone calls. The situation would be quite different if a message, perhaps a short message was left on the voice mail service. Given how well those who the party to the conversation knew each other and the extent of the conversations and the contents of those conversations, there was no scope for error and no requirement for a voice recognition warning.
The characterisation of closing speech as speculation
53. This arises in circumstances where defence counsel in his closing speech had canvassed the possibility that perhaps Kevin Whelan was the gunman. There was absolutely no evidence whatever that Mr. Whelan was the gunman, no admissions to that effect, no forensic evidence to offer any support for the suggestion, no one purporting to make an identification or otherwise. In those circumstances, if one was to conclude that Mr. Whelan was the gunman or indeed on the motorbike then that could only be on the basis of speculation, indeed wild speculation. The observation by the trial judge was little more than a passing remark and indeed was no more than a statement of the true position. The suggestion that Mr. Whelan might have been the gunman was indeed speculation. The defence have suggested that while it might be possible to say that contending that Mr. Whelan had gone and got the motorbike was speculation that it was not speculation to say as they had said that there was time for him to have done so. Really, this distinction is overly subtle and the judge was correct in identifying the substance of what the defence was floating. The remarks were unobjectionable in the circumstances
Accomplice warning
54. The defence complain that when dealing with the question of who is an accomplice that the judge gave by way of example, indeed the only example, that if Mr. Whelan drove the motorbike that would make him an accomplice. The judge made his remarks in a situation where he also spoke about aiding and abetting a crime or assisting someone to escape. He then delivered an accomplice warning. That section of the charge precipitated requisitions from both sides mainly directed to the issue as to whether it had been made sufficiently clear to the jury that it was for the prosecution to disprove that Mr. Whelan was an accomplice. During that exchange defence counsel referred to Coonan and Foley on The Judge’s Charge which refers to the fact that only a slight degree of complicity was sufficient and he asked the judge to use that particular phrase. The judge felt that the phrase “a slight degree of complicity” would not clarify matters and that the position is that one was either complicit or one was not. This Court accepts the contention of the prosecution that the submission which was made on behalf of the accused blurred the distinction between the threshold for triggering the warning and the separate issue of the contents of the warning. A slight degree of complicity triggers the warning but once the warning is given it is for the jury to decide whether the individual was complicit and therefore where he was in fact an accomplice or whether he was not.
Refusal to charge the jury with agreed formula
55. This issue arose from what was described at trial as the “chicken and egg” scenario to which there has already been reference namely, the fact that if the jury did not accept the testimony of Kevin Whelan then the admissions made by the appellant were uncorroborated, whereas if the jury did not accept that the admissions were made then the jury had only the uncorroborated evidence of Kevin Whelan. The issue gave rise to considerable debate and at one stage the trial judge invited counsel to consider agreeing a formula and submitting it to him. The parties were able to reach agreement but the defence was concerned that the judge did not stick sufficiently close to the agreed line. In particular there was concern on the part of the defence that what the judge had to say did not make it sufficiently clear that a conviction could not be based upon the evidence of the admissions alone.
56. The defence was concerned that what the judge had to say was not sufficiently clear on the fact that a conviction could not be based upon the evidence of the admissions alone. The issue was raised during the course of requisitions and the trial judge returned to the issue.
57. The Court is satisfied that it must have been very clear to the jury that the admissions could not found a conviction for murder alone. In the course of his charge the judge had commented:-
“Oh yes, it has also been agreed by the parties and I agree also, what was said to the gardaí alone is not enough to found a conviction in this case. It has to be on the basis of Mr. Whelan’s evidence, whether or not corroborated or not.”
58. In responding to requisitions the judge commented:-
“I think I have may have made this clear to you, but for the avoidance of doubt, there is insufficient evidence on what was said to the gardaí, if you are to accept it by Mr. Ryan to found a conviction for any offence. I believe I may have made that clear to you, in itself, on a free standing basis, it would not be enough, in other words ok?. Hopefully, in the light of all I’ve said, one can see that it wouldn’t be enough. So, its, in that sense, we know that whether you regard it as corroborated or not, we have the evidence of Mr. Whelan is the case really and I spoke to you about corroboration and dangers and all of that type of thing.”
Lucas directions
59. This arises in circumstances where the appellant had indicated during the course of the final interview that he had been subjected to a threat which caused him to make up false admissions. The appellant was cross examined in relation to this during the course of the voir dire and admitted that while there had been a threat that he had invented the story he had told as a basis for repudiating his admissions. In other words he had accepted that he lied. In cross examination he said that he had made false admissions because of the pressure placed on him by interviewers and that he had made up a story, about a threat made to him while on the South Circular Road, because “he did want to be under pressure again”.
60. The lie in issue therefore was not the usual one. It did not relate directly to the events at Fortlawn, but to the issue as to the circumstances in which admissions were made and withdrawn. This was not therefore a case where the prosecution were relying on a lie as corroboration, the lie in question did not relate to the central issue whether Bryan Ryan was on the motorbike in Fortlawn Park but rather to a collateral, though very important issue as to whether admissions were made and if they were why they were made. In those circumstances the requirement for a Lucas warning or modified Lucas warning was not triggered. Accordingly, this ground too fails.
61. In summary the Court has not been persuaded that the conviction was unsafe and the Court will reject the appeal and affirm the conviction.
