appeal First person convicted after acquittal for same crime denied reasonable access to solicitor court hears
Richard Dekker is currently appealing his conviction for murdering Daniel McAnaspie (17)
A murderer who became the first in the State to be convicted following his acquittal for the same crime was denied reasonable access to a solicitor after his arrest and wasn’t properly cautioned during questioning by gardai, his lawyers have told the Court of Appeal.
Richard Dekker (35), formerly of Whitestown Avenue, Dublin, but now a prisoner at Mountjoy Prison, had denied the murder of 17-year-old Daniel McAnaspie, who was in care of the HSE.
He was found not guilty by direction of the trial judge at the Central Criminal Court in 2013, when Mr Justice Paul Butler ruled there was a lack of evidence against Dekker.
Dekker then made legal history when the Supreme Court ruled that under the Criminal Justice Procedure Act 2010 he could face a second trial for the murder.
He was later convicted by a unanimous verdict in 2017 of murdering Daniel, whose decomposed body was found in a farmer’s drain around 30km from where he was killed three months earlier in Tolka Valley Park, Blanchardstown, Dublin, on February 26, 2010.
He was sentenced to life imprisonment by Mr Justice Patrick McCarthy.
Dekker has since appealed the conviction, on the grounds that the trial judge erred by allowing into evidence his answers to questions put to him by gardai following his arrest.
At the Court of Appeal today, Sean Gillane SC, for Dekker, said the case “had an unusual procedural history”.
He said his client was taken into custody at 8am on May 24, 2010, as part of a planned arrest by gardai, and that the appeal “turned on” the admissibility of answers Dekker had given to gardai during subsequent interviews at Cabra Garda Station in Dublin.
Mr Gillane explained his client was questioned throughout the day and that later interviews were carried out in the evening and during the early hours of the next morning without the presence of his client’s solicitor.
It was during one of the later interviews, at 4.45am on May 25, when Dekker was told by detectives that they planned to invoke inference provisions, whereby adverse inferences could be drawn if he failed to answer questions properly.
Mr Gillane said his client remained “under ordinary caution” at this point and was not cautioned “as required by the rules”.
He was also told it “would cost him” and his “credibility would be shot” if he maintained his right to silence.
And although Dekker then asked to speak to his solicitor, he was told she was sleeping and that gardai could not “wave a magic wand”.
Mr Gillane said his client was told by one officers: “I am after ringing your solicitor. Just because you want to stay up doesn’t mean everyone else does. We are still going to do this. We are entitled.”
“The right to reasonable access to legal representation was breached,” counsel added.
“Despite explicit requests for legal advice, the prosecuting team ploughs on,” he continued.
“That step rendered everything that comes after it tainted and inadmissible.”
Mr Gillane observed that if his client had managed to stay silent, “the prosecution would have had nothing to advance”.
“The learned trial judge erred in concluding that the right to silence was in play and known to him [Dekker],” he added.
Brendan Grehan SC, for the Director of Public Prosecutions, said there had been “absolute zero evidence” presented at the trial to suggest Dekker was in some way “confused” by gardai invoking the inference provisions.
On being informed his co-accused Trevor Noone had blamed him for the murder, Mr Grehan said Dekker had “adopted a position, perhaps through anger but a very clear position nonetheless, that the other person was lying".
After showing detectives where they could find the shears used to murder Mr McAnaspie and one of the shoes Mr McAnaspie was wearing on the night of the fatal assault, Mr Grehan said Dekker “was not making a confession. He believed he was assisting gardai”.
Dekker, Mr Grehan continued, had been given access to his solicitor via phone calls and there was “no question” about whether he understood the legal advice he had been given.
“He had been told about inferences by his solicitor and if they were used he was not to say anything without speaking to her first,” Mr Grehan said,
“The court may or not be aware that there have been cases where inferences have been invoked but fall by the wayside at trial,” he added.
When asked by Ms Justice Úna Ní Raifeartaigh, sitting with Mr Justice George Birmingham, presiding, and Mr Justice John Edwards, if he could clarify which caution Dekker was under when being questioned, Mr Grehan responded: “There is only one caution, the one that you are given at the start of the interview on your right to remain silent.”
“In this case, the accused was cautioned at the beginning of the interview, he was cautioned twice, and the caution was never withdrawn,” he added.
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