A burglar who was caught by gardaí when he rang a phone he'd left at the scene of the crime has launched an appeal against his conviction, arguing that the plain-clothes officer who met him did not give a proper caution.
The Court of Appeal heard that Garda Stephen White answered the phone, which was covered in glass when it was recovered from the scene of the burglary, and spoke to David Lynch (50), Leinster Road, Rathmines, Dublin 6.
Lynch said he had lost the phone and Gda White, who did not identify himself as a garda, arranged to meet him. Gda White turned up at the meeting in plain clothes and Lynch identified himself as the owner of the phone.
Lynch was subsequently arrested and later convicted of possession of a knife, burglary, criminal damage, and obstruction of a peace officer. He was sentenced to three years and three months in prison.
At the appeal on Thursday, counsel for the appellant Gerard Charlton BL referred to a transcript of the original court case, in which Gda White was asked what he believed about the appellant following this phone call.
Garda White replied: "I believed he was responsible for committing the burglary."
The garda was further asked if he was suspicious of the man who would turn up and keep the appointment.
"I believed, and do believe, that the person who was meeting me with the phone was a culprit and responsible for the burglary," replied Gda White.
Mr Charlton said there was an obligation for Gda White to caution the appellant when he met him as arranged.
Appeal court judge Ms Justice Isobel Kennedy said: "We all know that when investigating a crime, the whole world is a suspect, but that doesn't mean you have to caution them."
"Gda White was of the view that he was meeting a suspect," said Mr Charlton. "If he believes he has a suspect, he should identify himself and caution the suspect. At that point, when the man was standing before him and had kept the appointment, the garda knew he was on the threshold of incriminating himself."
Mr Charlton said the appellant had identified himself as the owner of the phone found at the scene of the burglary covered in glass. He said Gda White had not cautioned him when he should have.
"Did he not caution him because he didn't want to discourage him from making an admission?" asked Mr Charlton.
Mr Charlton went on to say that any evidence obtained from a subsequent search of the appellant's house should be struck out, as the appellant had not been cautioned.
Mr Justice John Edwards referred to a case of a yacht containing cannabis in which a man on shore was waiting to be contacted by phone by people on board. The gardaí detained the man and got the phone, and when it rang, a garda inspector answered it without disclosing he was a garda. The gardaí were able to obtain the location of the yacht, and the navy intercepted it and the people on board were arrested.
"While the inspector was highly suspicious of the people he was talking to, he had not made up his mind to charge them, but the court saw nothing wrong with allowing them to incriminate themselves," said Mr Justice Edwards.
Mr Charlton again said that when Gda White met the appellant, he should have cautioned him.
"He did not do so because the man he met would have been reluctant to speak," said Mr Charlton.
Counsel for the DPP Gerardine Small SC said that anyone could have attended the meeting with the garda on the day as the real culprit could have sent someone else.
"Only when the person then identifies the phone does the suspicion crystallise," she said.
Ms Small said that the fact that Gda White met the appellant in plain clothes was good police work.
"Had he presented in uniform, we wouldn't be here today," said Ms Small. She said there was no unfairness in the case, and everything was carried out lawfully.
"He may not like the fact that the garda availed of an opportunity, but there is no unfairness," said Ms Small.
Judgement was reserved in the case to a later date.
