Court of Appeal dismisses appeal where evidence of prior police conversation was held admissible despite detention extension.

THE COURT OF APPEAL

[317/2018]

Birmingham P.

McCarthy J.

Kennedy J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

ANDREW SHANNON

APPELLANT

JUDGMENT of the Court delivered on the 31st day of May 2019 by Ms. Justice Kennedy

1. This is an appeal against conviction. The appellant was convicted on November 28th 2018 of an offence of possession of stolen

property contrary to s.18 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and was sentenced on November 30th 2018.

2. The property in question was a painting of a desert scene by the artist Frederick Goodall. The painting had been stolen from Bantry

House, Co. Cork, in March 2006. On the 31st January 2014, the gardaí searched the appellant’s home and this painting was found

hanging on a wall in the attic.

3. Prior to that, in November of 2006, while being detained pursuant to s.4 of the Criminal Justice Act, 1984 in relation to another

matter, namely; handling five John Speed maps, the appellant was interviewed by members of the gardaí. In the course of interview,

Detective Sergeant Fergus O’Brien had a conversation with the appellant in relation to the theft from Bantry House and described

what had been stolen from there, specifically, three paintings. On the first day of the trial, the subject matter of this appeal, an issue

arose concerning the admissibility of evidence of that interaction. The respondent sought to introduce evidence of the information

given to the appellant in order to establish that Mr Shannon knew or was reckless as to whether the painting by Frederick Goodall was

stolen property.

4. It is necessary to briefly set out the background to the offence for which Mr Shannon was detained in 2006. In November of that

year, the gardaí became aware that five John Speed maps had been stolen from Tinakilly House in Wicklow and on the 30th November

2006, the gardaí obtained a search warrant for Number 12 Willan’s Way, Ongar, Dublin, which warrant was executed on the same

date. The gardaí found therein five John Speed maps and accordingly Mr Shannon was arrested for the offence of handling stolen

property and detained pursuant to section 4 of the Criminal Justice Act 1984.

5. In the course of his detention he was interviewed by the gardaí concerning the offence for which he had been arrested. The

appellant’s detention was extended for a further period of six hours on the authorisation of Superintendent Roche. The interview

during which the impugned conversation took place commenced at 16.50 and after caution, the interview commenced. In the course

of this interview for a period of some 19 minutes, the “Bantry House” offences were discussed after which questioning resumed

concerning the offence for which the appellant had been detained, namely the “Tinakilly House” offence. The appellant’s initial period

of detention expired at 18.10 and it was argued at trial that all material which arose during the interviews thereafter was inadmissible

on the basis that Superintendent Roche had stated in evidence that he was unaware that the gardaí intended to question the

appellant in respect of matters other than that for which he had been detained or in respect of which the appellant may have been a

potential witness. Moreover, that the witness would not have authorised the appellant’s continued detention had he known of these

matters.

6. The trial judge ruled in favour of the respondent and the impugned material was adduced in evidence in the following manner: –

“Q. Detective Sergeant O’Brien , I think that in or around 30 November 2006, you had a conversation with Mr Andrew

Shannon.

A. That’s correct, judge, yes.

Q. You can identify Mr Shannon as being the defendant in this case

A. The defendant?

Q. Yes?

A. That’s correct.”

Perhaps the most significant portion of the evidence could be stated to be the following: –

“Q. And you asked him for how long he had been an antiques dealer, and he told you for about 10 years. Over the years

he had bought and collected stuff?

A. That's correct, Judge, yes.

Q. And you asked him about the nature of his business, and he told you that he had been sharing a business with

somebody else that he had started off in the Blackrock Market?

A. That's correct, Judge, yes.

Q. And I think that you suggested to Mr Shannon that he was an antiques' professional?

A. That's correct, Judge, yes.

Q. And I think that during the course of the conversation you were aware of the fact that there'd been a theft of a

number of paintings from Bantry House?

A. That's correct, Judge, yes.

Q. And I think that during the course of the conversation you told Mr Shannon about this theft from Bantry House?

A. That's correct, Judge, yes.

Q. And you told him that there was a painting with a desert scene with a camel and a pyramid in the background?

A. That's correct, Judge, yes.

Q. And you also told him that there was a painting, a winter scene with sheep in a field painted in 1892 by Frederick

Goodall that was approximately 20 inches by 18 inches?

A. That's correct, Judge, yes.

Q. And you also told him that there was also a further painting of a hawker shooting at night with ducks flying?

A. That's correct, Judge, yes.

Q. And you told him that each of these paintings had been stolen from Bantry House?

A. That's correct, Judge, yes.”

7. Whilst the notice of appeal discloses 4 grounds, only 2 grounds are now being pursued which concern the admissibility of this

information given to the appellant in the course of interview in November 2006. Those grounds are as follows: -

• The trial judge erred in law in allowing evidence of the interaction between Detective Sergeant O’Brien and the

appellant in 2006;

• The trial judge erred in failing to withdraw evidence that was more prejudicial than it was probative.

The Voir Dire

8. In the course of the hearing on the issue, Garda Robert Whelan gave evidence that he was the member in charge of Wicklow Garda

Station on the 30th November 2006 when the appellant arrived at the station and that he detained the appellant for the purpose of

the investigation of the offence of handling stolen property. Garda James O’Sullivan took up duty as member in charge of Wicklow

Garda Station at 14.00. He accepted that no application was made to him to change the basis of the appellant’s detention. Detective

Sergeant O’Brien gave evidence that he held no suspicion in respect of Mr Shannon regarding the theft of the paintings from Bantry

House. He did suspect his brother, Gerard Shannon, had an involvement. He accepted that there was no basis on which the appellant

could be detained for the investigation of the offence of theft from Bantry House.

Superintendent Roche gave evidence that he extended the detention of the appellant for a period of 6 hours at the request of

Detective Sergeant O’Brien with effect from 18.10 following a conversation at 17.50. He was aware of the offence for which the

appellant had been arrested. In cross-examination, the following arose:-

“Q. Mr Roche, did anybody say to you that they were going to question the accused in respect of matters for which he

was not in detention?

A. No, Judge.

Q. Or in respect of which he might be a potential witness?

A. No, Judge.

Q. Would you have authorised his continued detention had you known that that was one of the purposes for his ongoing

detention?

A. No, Judge.”

9. At the conclusion of the evidence, an application was made on behalf of the appellant to exclude any matters which arose in

interview after 18.10 on the basis of Superintendent Roches’ evidence in cross-examination. Furthermore, on the basis that no

request had been made of Garda O’Sullivan, the relevant member in charge, to alter the purpose of the detention, so as to enable

questions to be asked concerning the theft of the paintings from Bantry House. Counsel on behalf of the respondent submitted before

the trial judge that the gardaí were entitled to act in the manner they did and placed reliance upon the decision of The People (DPP)

v. Howley [1989] ILRM 629. The trial judge permitted the evidence. In considering the application to exclude the evidence, she noted

that the impugned part of the interview amounted to 19 minutes of a three-hour interview. She also held that questions in relation to

Tinakilly House were being asked right up to the end of the interview and that accordingly the detention was lawful.

The submissions

10. Mr Thompson BL for the appellant submits that at 18.30 the questioning moved from the Tinakilly House offence to Bantry House

and for 19 minutes the gardaí questioned the appellant regarding the latter and then returned to questions concerning the Tinakilly

House offence. He says that significant reliance was placed by the respondent on the decision of the Supreme Court in Howley.

However, he seeks to distinguish this decision from the facts of this present case. He argues that in Howley the applicant was

arrested pursuant to the provisions of section 30 of the Offences Against the State Act 1939 on suspicion of having committed the

offence of malicious damage, however in the course of his extended detention, Mr Howley made admissions in respect of the offence

of murder and was convicted of that offence. It was held by the Supreme Court (Walsh J.): -

“On the findings of fact in this case the detention during the period of the extension of the original detention was in

accordance with law because it was in respect of an offence which the Garda Síochána were genuinely investigating even

though at the same time they were investigating and were even more interested in a much more serious offence and were

questioning a detained person in respect of that more serious offence.”

Mr Thompson contends that the decision in Howley was appropriate to the circumstances pertaining at that point in time. However,

he states that section 30 has limited application to the provisions of section 4 of the 1984 Criminal Justice Act, the provision under

which the appellant in the instant case was detained. He states that section 4 permits an extension of an individual’s detention only

where the member of sufficient rank has reasonable grounds for believing that such further detention is necessary for the proper

investigation of the offence. He argues that whilst the Supreme Court in the case of The People (DPP) v. MC [2014] 3 IR 279 found

that Howley is: -

“clear authority for the proposition that, provided the person is genuinely being detained for the purpose of investigation

of the original offence, the Gardaí may question him in respect of the suspected commission of other offences.”

Mr Thompson says that the difference in the instant case is that the members of an Garda Síochána responsible for the appellant’s

detention and extension of detention were not aware that he was to be questioned in respect of other offences, specifically those

pertaining to Bantry House. He particularly relies upon the evidence of Superintendent Roche as stated above. He says that it is of

particular significance that in order to properly extend an individual’s detention, the person extending the detention must be aware of

the true reasons for the extension application.

11. The respondent submits that the decision to extend the detention was taken at in or about 17:50. At the time the extension

decision was made, the appellant was unquestionably being detained in respect of the Tinakilly matters. Mr Berry BL says there are

two evidential bases for this: the appellant’s counsel gave the time of the switch to Bantry House as being 18:31 which was

confirmed by Detective Sergeant O’Brien and further the questions being asked in the memo around the time that Detective Sergeant

O’Brien left to obtain the extension indisputably related to Tinakilly. It is submitted that at the time of the extension hearing, the

active investigation of the appellant related to the John Speed maps stolen from Tinakilly House. In considering the application to

exclude the evidence, the trial judge noted that the impugned part of the interview amounted to 19 minutes of a three-hour

interview. She also held that questions in relation to Tinakilly House were being asked right up to the end of the interview and that

accordingly the detention was lawful.

12. The respondent submits that Howley is authority for the proposition that questions can be asked in relation to other matters

during the course of his detention without rendering the detained suspect in unlawful custody, for example, by asking innocuous

questions. Nothing of substance, such as a confession or incriminating answers are available to the defence case. The respondent

submits that the appellant is seeking to prevent evidence of a warning, given to him, about stolen property being relied on during a

trial for the subsequent possession of that stolen property. It was entirely reasonable for the gardaí to deliver the warning they did to

the appellant, due to the following conditions present: the appellant was being detained for questioning in relation to stolen property

which had been found in his home; his brother was suspected of stealing the property found in his home; he had a long history of

trading in antiques; he had expressed, in interview, the view that stolen property could be purchased at various markets; and, his

brother was a suspect in relation to a different theft of artwork from Bantry House in similar circumstances. The trial judge was

therefore correct to rule that the warning was fairly given and that the detention of the appellant was lawful.

Discussion and conclusion

13. The applicant was arrested for the offence of handling stolen property concerning Tinakilly House. He was detained pursuant to

section 4 of the 1984 Criminal Justice Act for the proper investigation of this offence. At 16.10 his initial period of detention expired

and some 10 minutes prior to the expiration of this period of detention, an application was made to Superintendent Roche to extend

the period of his detention for a further six hours. The application was made by Detective Sergeant O’Brien for the purpose of

investigating the theft of the John Speed maps from Tinakilly House.

14. It is clear from the run of the evidence that Detective Sergeant O’Brien did not hold any suspicion in respect of the appellant

concerning the theft from Bantry House when he questioned the appellant regarding Tinakilly House in 2006. He also accepted that

there was no basis upon which the appellant could be detained for the investigation of the theft from Bantry House in 2006. It is clear

that having been granted the extension order, the gardaí continued to question the appellant regarding the offence for which he had

been arrested. During the course of that interview, discussions took place regarding the theft from Bantry House. Information was

given to the appellant in the course of that interview regarding the particular items which were stolen from Bantry House. No

suggestion was made to the appellant that he was responsible for the theft from Bantry House. The purpose of leading the impugned

evidence was in order to establish that the appellant knew that the Frederick Goodall painting had been stolen or was reckless as to

whether or not it had been stolen. Evidence was not led of inculpatory material as regards the Bantry House theft and indeed how

could it have been in that he did not make any admissions regarding that theft but the evidence was led in order to demonstrate that

information had been imparted to the appellant regarding this theft and that such information had been made known to him in 2006.

15. The question must be posed that if the member of the gardaí had simply given evidence that he had furnished this information to

the appellant sometime prior to the date when the painting was found in his attic, would that evidence have been inadmissible? The

fact that the material was imparted to him in the course of interview does not in and of itself make the evidence inadmissible.

16. At the time when the application was made to Superintendent Roche to extend the appellant’s detention it was indicated to him

on the evidence that this was for the purpose of the investigation of the offence for which he had been arrested. The interview in

which the impugned 19 minutes’ discussion took place commenced with questions regarding the offence for which he had been

arrested and indeed concluded with questions regarding the offence for which he had been arrested. We can find no error in the trial

judge’s conclusion that the ongoing investigation following the extension of the appellant’s detention concerned the matter for which

he had been arrested.

17. In conclusion, on this ground we are satisfied that the evidence was admissible evidence and properly ruled as being so by the

trial judge. We are satisfied that the appellant’s detention was not rendered unlawful by virtue of the discussion regarding Bantry

House in the instant case. No suspicion was held by members of the gardaí that he was involved in the commission of the Bantry

House offence and nor was he interviewed as a suspect for that offence. Certain discussions took place and the import of the

evidence adduced was as to the information which had been given to Mr Shannon by the gardaí in the course of a conversation. This

ground fails.

18. The second ground of appeal concerns the same evidence but the complaint is that the appellant was denied his right to a fair

trial in circumstances where the prejudicial effect of the evidence outweighed its probative value.

19. In order to assess this ground, we have scrutinised the manner in which the evidence was adduced at trial. As set out above in

the extract from the transcript it was made quite clear to the jury that this was evidence of a conversation held with Mr Shannon in

2006. There was no suggestion that Mr Shannon had been detained for another offence or that he had been interviewed in respect of

another matter. Evidence was simply led of a conversation between Mr Shannon and Detective Sergeant O’Brien. We can find no

suggestion of any possible prejudice in this respect. It is clear that the evidence was highly probative and, as we have already said,

admissible. Any possible prejudice was entirely avoided by the manner in which the evidence was adduced. This ground therefore also

fails.

20. Accordingly, the appeal is dismissed.