Supporting Documents:

THE SUPREME COURT

DETERMINATION

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

GARY CAMPION

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1 The facts in this case are set out in the application for leave, the respondent’s notice, and in a comprehensive judgment of the Court of Appeal delivered on the 30th of November 2015, all of which are publicly available. On the 28th of May 2009 the applicant was convicted by a jury (by majority decision) in the Central Criminal Court (Carney J) of the murder of a Mr Frank Ryan on the 17th of September 2006, in Moyross, County Limerick. He received the mandatory life sentence. A significant and central element of the prosecution’s case was the introduction of statements given by a key eye witness, Mr Erol Ibrahim (“the witness”), who was a friend of the deceased and was in the car with him when the deceased Mr Ryan was shot twice in the back of the head. The killer had allegedly been picked up by the deceased and had been a passenger in the back seat of the car. Mr Ibrahim voluntarily attended at a garda station and gave an account of the incident in which he denied knowing who shot the deceased. He was later arrested for withholding information. While detained at Moyross Garda Station, a brother of the deceased arrived at the garda station wishing to see the detainee. When he met Mr Ibrahim, Mr Ryan’s brother conveyed to him the family’s wish that he should tell the truth and if he did this he would not be labelled a “rat”. Mr Ibrahim then stated that it was the appellant who had shot the deceased. This declaration was not video taped, but a short memorandum was taken by gardaí. In subsequent video taped interviews the witness repeated, and to some extent expanded upon what he had said during the encounter with the deceased’s brother. The prosecution also relied on statements alleged to have been made by the applicant after arrest and on the way to the garda station.

2 At the trial Mr Ibrahim was called to given evidence. He reverted to his original account maintaining that he could not identify the person who had killed Mr Ryan. He said that he had made the statements identifying the applicant, because he had been detained in the garda station, that these were lies, and he would have said anything to get out of custody. The trial judge acceded to a prosecution application to admit the video taped statements identifying the applicant as the killer of Mr Ryan pursuant to s16 of the Criminal Justice Act 2006.

3 The application for leave challenges the admission of the statements under s16 on a number of grounds and also contends that the trial was rendered unfair by reason of the publication in the Irish Independent newspaper of a report which commenced on its front page relating to the then recent murder of Roy Collins in Limerick, and continued on page 6 of the edition, identifying 18 victims of what the newspaper described as a gang war in Limerick. One of the victims identified was a Brian Fitzgerald who was described as having been a “bouncer shot and killed by James Martin Cahill and Gary Campion in November 2002”.

4 The application for leave contends that the Court of Appeal was wrong in holding that the statutory requirements were satisfied namely, that the statements were proved to be “voluntary” pursuant to s16(2)(ii), and “reliable” pursuant to s16(2)(iii) and s16(3) and that the statement did not present “any risk of unfairness” under s16(4)(a). In addition to these complaints made in relation to s16 of the 2006 Act, the applicant also contends at ground 4 that the Court of Appeal erred in holding that the learned trial judge’s charge to the jury in relation to s16 was adequate. At ground 2, the applicant contends that the Court of Appeal erred in its conclusion that the trial was fair notwithstanding the publication of an adverse newspaper report during the trial. Finally, it is contended that the alleged remarks made by the appellant after his arrest but before been taken in to the garda station ought to have been excluded as evidence in the trial as his detention was unlawful by reason of the principal in Damache v DPP [2012] 2 IR 266. This issue arose because a warrant had been issued under s29 of the Offences Against the State Act 1939 to search premises in County Cork.

5 It is convenient to deal first with the points which are not related to s.16 of the 2006 Act. In relation to the Damache point, the Court of Appeal observed that in circumstances where there was no challenge to the warrant made at the trial, it was difficult if not impossible to see how, in accordance with authority, the point could be raised for the first time in the Court of Appeal. Furthermore, the Court observed that while the issue was not explored in any detail because no point had been taken in relation to the validity of the warrant, it appeared that the gardaí had gone to the address with a dual purpose namely to arrest the applicant and to search the premises. In any event the Court considered the matter put beyond doubt by the decision of the Supreme Court in the case of DPP v JC [2015] IESC 31. This Court considers that the Court of Appeal applied settled law to the point raised and accordingly that the application does not in this regard involve an issue of law of general public importance. Similarly, the contention that the trial court ought to have discharged the jury by reason of the publicity, involves no novel point of law whether of general importance or otherwise, but rather the application of existing principles to the particular facts of the case. Accordingly, the Court will consider the central grounds of appeal in this case, which relate to s16 of the 2006 Act.

6 As the Court of Appeal observed, no case which involves s16 is likely to be straightforward. It is a novel provision in Irish law. It is likely that it will be continued to be considered in particular circumstances in trial courts, and that the jurisprudence in relation to s16 will be developed by decisions of the Court of Appeal. However the issue on this application is whether the particular points raised meet the constitutional threshold of raising either a point of law of general public importance, or a point which should be addressed in the interests of justice. The latter criterion may be disposed of at the outset. In this case there was a trial, and an appeal to the Court of Appeal which delivered a careful and comprehensive judgment. In the normal course of events this is both the administration of justice and what the interests of justice require. An application for leave to appeal to this Court on the grounds of the interests of justice cannot be reduced to simple application for a further appeal reviewing issues which have already been the subject of consideration by the Court of Appeal. Accordingly, the Court will address the question of whether the remaining points raise issues of general public importance.

7 The question of the adequacy of the judge’s charge was essentially a matter for the Court of Appeal. The Court does not consider that any specific issue of law arises in relation thereto. Similarly, the question whether there was any unfairness in the admission of the statements pursuant to s16 was the application of a statutory test of the particular facts and raises no issue of general public importance. The contention that the statutory criterion of reliability requires a trial judge to assess truthfulness is not a point which the Court considers reaches the constitutional standard. Finally, the applicant argues that the Court should adopt an expanded concept of voluntariness relying, it appears, on dicta from a Canadian authority R v B [1993] 1 SCR 740, which referred to the requirement that a statement be free of “coercion of any form whether it involves threats, promises, excessive leading questions by the investigator or other persons in a position of authority, or other forms of investigatory misconduct”. It appears from the extract cited that this is an approach taken in general to the question of the voluntariness of statements, and applied in the specific context of the admission of prior statements as evidence, which in Canada is a matter of common law, rather than statute. The applicant further contends that this argument was not specifically dealt with by the Court of Appeal. However, at paragraph 33 of the judgment of the Court of Appeal it is stated that “the complaint that Mr Ibrahim was coerced into providing information as a result of threats, inducements, cajoling, coaxing and investigatory misconduct were all matters that were considered in great detail at trial, and the conclusions of the trial judge were ones that were open to him and fully supported by the evidence”. Accordingly, it is apparent that even if the applicant succeeded in persuading a court that the formulation referred to above, (1) involved a wider definition of voluntariness either in the general context or in the specific context of s16, and (2) should be adopted and applied generally, it would nevertheless not avail the applicant in this appeal, since the allegation of coercion as so described, was rejected both, it appears at trial and on review the Court of Appeal. Thus even if the definition contended for by the Applicant was adopted it could not result in a successful appeal. Accordingly, it cannot be said that the constitutional criteria have been met in this case since the issue raised even if decided as the applicant contends, could not result in a successful appeal.

Additional Matters

8 The applicant seeks an extension of time within which to appeal. An original application was made which was not accepted by the Supreme Court Office on the basis that it failed to comply with the Rules of the Superior Courts for such applications, and the practice direction. A further document was submitted which was considered to comply. In the circumstances the Court is satisfied to extend time to apply for leave to appeal. Finally, and in the particular circumstances of the relative novelty of s16 of the Criminal Justice Act 2006, the Court considers it desirable to point out that the determination of the Court on an application for leave, while final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue for the Court is whether the questions raised and the facts underpinning them meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having precedential value in relation to the substantive issue in the context of a different case. Where leave is granted, the issue or issues upon which leave has been granted will in due course be disposed of in the substantive decision of the Court.

9 Accordingly, leave to appeal to this Court is refused.

And It is hereby so ordered accordingly.