A burglar who was caught by gardaí after he rang a phone he left at the scene of his crime has failed in a bid to overturn his conviction.
The Court of Appeal had heard that Garda Stephen White answered the phone, which was covered in glass when it was recovered from the scene of the burglary at a house in the suburbs of Dublin.
Garda White spoke to David Lynch (50), Leinster Road, Rathmines, Dublin 6, on January 26th, 2019, and arranged a meeting.
Lynch said he had lost the phone and Garda White, who did not identify himself as a garda, met the appellant at the Molly Malone statue in plain clothes and Lynch identified himself as the owner of the phone.
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Garda White also observed that Lynch was wearing a knife attached to a lanyard around his neck.
Lynch was subsequently arrested and later convicted of possession of a knife, burglary, criminal damage, and obstruction of a peace officer.
After being conveyed to Donnybrook Garda station and searched, gardaí recovered a bag of jewellery from Lynch that had been taken from the house.
He was sentenced to three years and three months in prison.
At the appeal hearing, counsel for the appellant Gerard Charlton BL referred to a transcript of the original court case, in which Garda White was asked what he believed about the appellant following the phone call.
Garda White had 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 Garda White.
Mr Charlton said there was an obligation for Garda White to caution the appellant when he met him as arranged.
Good police work
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.”
“Garda 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 Garda 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.
At the Court of Appeal on Monday, Ms Justice Isobel Kennedy said the appeal was dismissed as the court found “no error is the trial judge’s ruling”.
“We are not persuaded that is the merit in this argument on the facts disclosed. Garda White was undoubtedly entitled to ask questions of the appellant regarding ownership of the phone. The fact that he was in plain clothes and did not identify himself as a garda could be said to be appropriate to Garda investigation - he could have received several answers to his questions regarding ownership,” said Ms Justice Kennedy.
Ms Justice Kennedy said that it was only when appellant was able to identify the phone as his own by recognising a sticker on it that “the garda’s suspicion then hardened and he arrested the appellant and administered the caution - we find no error in the trial judge’s ruling in this regard”.
At the appeal hearing, 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. 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.
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 Garda 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.