Case Commentary

Abstract

Cautions; directed verdicts; views – Ireland

The defendant, in Director of Public Prosecutions v O’Loughlin, [2018] IECA 25, was charged with murder. It was apparently agreed that he had ‘forcibly pushed the deceased into a rubbish chute’ in an upper-storey floor of his apartment building. He claimed, however, that he had not intended to harm the deceased; he ostensibly believed that the deceased would ‘slid[e] safely down into the basement area and then [leave] the building’. Instead, the deceased became stuck in the chute and asphyxiated.

The defendant was convicted at trial. On appeal to the Irish Court of Appeal, he argued that there had been several errors of law. We will focus here on the three evidentiary issues.

The first issue concerned the absence of a police caution. Once the deceased’s body was discovered, Gardaí interviewed a number of residents in the apartment building. Detective Garda Harrington and another officer interviewed the appellant. The notes of that interview were subsequently admitted into evidence.

The appellant argued on appeal that this was in error, since he had not been appropriately cautioned. According to the Judges’ Rules, once ‘a police officer has made up his mind to charge to charge a person with a crime he should first caution such a person before asking any questions or any further questions as the case may be.’ The appellant claimed that Detective Garda Harrington had indeed made up his mind. On the evening of the interview, the officer ‘noticed what appeared to be a blood smear on the wall inside the door and a cut to a knuckle of the appellant’s hand’. He also noticed that the appellant’s hands were shaking. Under the circumstances, the appellant argued, it should have been apparent that he had been ‘on the verge of admitting his involvement in a crime’. That being the case, a caution was needed.

The respondent stressed that no decision had been made to charge the appellant at the time the interview took place, and that he was not in custody.

[Detective Garda Harrington] said he did not immediately consider the appellant to be a suspect. He said that the blood stain and the cut knuckle did not particularly surprise him because he knew the appellant to be a volatile character. Detective Garda Harrington said that he and his colleagues had to keep an open mind at that point in time as the investigation had just begun, and they were unaware of the cause of the deceased’s death.

The Court of Appeal preferred the reasoning of the respondent. The trial judge clearly found that the investigating officers neither ‘knew [n]or ought to have appreciated that the appellant was on the threshold of admitting an involvement in the death of the deceased’. Writing for the Court of Appeal, Mahon J held that the interviewing officers were engaged in nothing more than a preliminary investigation; the appellant was not under any pressure to confess his involvement.

The appellant made a related argument that Detective Garda Harrington ought to have given him an opportunity to read and sign the notes from the interview. But the Court of Appeal found it highly unlikely that he would have made any alterations. The appellant had ‘unequivocally’ told the interviewing officers that he had not left his apartment at all for several days—a claim subsequently disproved by CCTV footage showing him in Cork city.

The appellant also argued that the trial judge ought to have directed the jury to acquit. The evidence was such, he claimed, that the jury could not find that the appellant intended to kill the deceased. Section 4(2) of the Criminal Justice 1964 states that intent may be presumed where death was a natural and probable consequence of the defendant’s conduct. But, the appellant argued, the evidence suggested that the deceased’s death was not a natural and probable consequence of throwing him down the chute, and so the presumption had no application. That being the case, the appellant urged, there was no basis for convicting him of murder. The appellant pointed to several pieces of evidence tending to establish a lack of intention to kill:

his own testimony that he did not know that the chute was blocked;

out-of-court statements he had made indicating a belief that the deceased would have crawled out of the chute and left the building;

statements made to the interviewing garda that he had not intended to kill anyone;

expert opinion evidence that the deceased’s fall would have been ‘greatly broken if he had landed in a wheelie bin filled with domestic refuse’;

evidence of an experiment in which a mannequin was dropped down the chute and resulted in no damage; and

evidence that a number of bruises sustained by the deceased were consistent with punches that did not cause his death.

The Court of Appeal rejected the suggestion that there ought to have been a directed verdict of acquittal. It was for the jury to decide whether to accept this evidence, and whether to infer a lack of mens rea. The mere fact that there was evidence capable of supporting that inference did not justify taking the case away from the jury.

The appellant was more successful on his last argument. Well into the jury’s deliberations, the Foreman asked whether it could ‘view the rubbish chute before making a final decision’. Neither the prosecution nor defence objected. But the inspection occurred in the absence of the appellant or his legal representatives:

By the time the appellant and his legal representatives arrived to the location of the chute in the apartment complex they found the learned trial judge getting into the lift to exit the building. No one was present on behalf of the prosecution, they having had apparently completed their visit to the location. It transpired that the learned trial judge, the jury and prosecution legal team had examined the chute in the absence of the appellant and his legal representatives.

Even more remarkably, it emerged that ‘in the course of their inspection of the chute the jury had performed an experiment of throwing a stone down the chute to see how it travelled’. The appellant had not been advised that such an experiment would take place, and ‘[n]o explanation was given as to why this experiment had been undertaken or what information it had revealed to the jury.’ As the Court of Appeal observed: ‘Clearly a stone thrown down the chute was an altogether different event than an adult male being forced head first into the chute and in circumstances where his shoulder to shoulder measurement almost equalled the width of the chute.’

Unsurprisingly, the appellant claimed that the judge erred in permitting the jurors to visit the scene. He argued that it amounted to the ‘introduction of new evidence well after the jury had commenced its deliberations’. The appellant also took exception to the ‘stone experiment’. It was, he argued, unclear how it was conducted or what one could hope to prove by undertaking it. This problem was exacerbated by the fact that the appellant and his legal representatives were not present when the experiment was carried out, and that the ‘result of [the] experiment was…unknown and unexplained’. In reply, the respondent argued that the appellant had not objected to the view when it was requested by the foreman.

Section 22(3) of the Juries Act 1976 states that a trial judge may permit the jurors to have a view of a place only ‘on the application of the prosecution or of the accused person’. No such application had been made by either party. Leaving aside the stone experiment, then, the judge’s permission to visit the chute was unlawful. The Court of Appeal remarked upon the fact that neither the appellant nor respondent had objected.

The fact that no issue was taken in relation to the proposed visit by either the prosecution or the defence is somewhat puzzling, although it is likely that neither party considered the proposed visit to be inappropriate or objectionable. It may be the case that the appellant’s legal representatives may have been concerned that if the proposed visit was disallowed because of an objection on their part (coupled possibly with a concern that the jury, although absent from the courtroom when that objection was made, would assume the objection had emanated from the defence) would reflect negatively on the appellant in the minds of the jury. Furthermore, at the time when the request was made by the Foreman of the jury, no mention was made of any intended (if indeed it was planned in advance of the visit) staging of a demonstration or a reconstruction.

The Court described the appellant’s failure to object as ‘unfortunate’, but did not regard it as fatal to his argument on appeal. This is because, as Mahon J explained, the ‘conduct of the stone experiment places the event of visiting the location of the chute at an entirely different level.’ The Court of Appeal found that the trial judge had erred in allowing the experiment to take place. If nothing else, the judge should have required the jury to wait until the appellant or his representatives had arrived.

It is unclear what information the jury expected to learn from the experiment having regard to the evidence they had heard in the course of the trial. A further criticism is levelled at the process which took place by the appellant to the effect that the visit to the chute by the jury was undertaken in the absence of the appellant or his legal advisors. This was due to the fact that the appellant and his legal advisors arrived at the location a little later than the jury, the prosecution and the learned trial judge. While there is every good reason why the appellant should not have been present in the immediate company of the jury while the jury inspected the chute, there was no reason why that inspection could not have been delayed until at least a member of the appellant’s legal team was present.

The Court of Appeal quashed the verdict of the jury.