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Judgment
Title:
Director of Public Prosecutions -v- Wilson
Neutral Citation:
[2017] IESC 53
Supreme Court Record Number:
15/2016
Court of Appeal Record Number:
CA 107 2013
Date of Delivery:
07/13/2017
Court:
Supreme Court
Composition of Court:
Denham C.J., O'Donnell Donal J., McKechnie J., Clarke J., O'Malley Iseult J.
Judgment by:
Denham C.J.
Status:
Approved
Result:
Appeal allowed
Details:
Judgment also by Judge McKechnie
Judgments by
Link to Judgment
Concurring
Denham C.J.
O'Donnell Donal J., McKechnie J., Clarke J., O'Malley Iseult J.



THE SUPREME COURT


Record No. S:AP:IE:2016/000015

Denham C.J.
O'Donnell J.
McKechnie J.
Clarke J.
O’Malley J.

      Between/
The Director of Public Prosecutions
Respondent


and


Alan Wilson
Applicant/Appellant

Judgment delivered the 13th day of July, 2017 by Denham C.J.

1. This is an appeal by Alan Wilson, the applicant/appellant, who is referred to as “the appellant”, from the judgment of the Court of Appeal dated the 5th November, 2015.

2. The Director of Public Prosecutions, the respondent, is referred to as “the respondent”.

3. On the 3rd June, 2016: Director of Public Prosecutions -v- Wilson [2016] IESCDET 47, this Court granted leave to appeal on the following ground:-

      The Court considers that the applicant has raised a point of general public importance as to the proper interpretation of s.19 of the Criminal Justice Act 1984, as amended. Leave will be granted on the question whether the section may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked.

Background

4. The offence arose out of an incident which occurred in a dwelling house in Blanchardstown on the 3rd June, 2009. Witnesses at the scene stated that they had seen the appellant and his co-accused at the scene.

5. The appellant was arrested pursuant to s.30 of the Offences against the State Act, 1939, as amended, on suspicion of having been involved in the unlawful discharge of a firearm.

6. While the appellant was being interviewed in custody, members of An Garda Síochána invoked the “adverse inferences” provisions of s. 19 of the Criminal Justice Act 1984 (as inserted by section 29 of the Criminal Justice Act 2007), referred to as “s. 19 of the 1984 Act”.

7. The appellant was subsequently charged with the offence of burglary contrary to section 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001 – that is, that he “… did enter as a trespasser the building known as 56 Dromheath Drive, Blanchardstown, Dublin 15, and did commit an arrestable offence therein to wit, assault causing harm”. The assault in question did not involve the use of a firearm.

Dublin Circuit Criminal Court
8. The trial of the appellant took place in February, 2013, before the Dublin Circuit Criminal Court. A co-accused, Mr. David Crowley, was charged with the same burglary/assault offence and also with the offence of possession of a firearm in such circumstances as to give rise to a reasonable inference that it was not in his possession for a lawful purpose. Evidence was adduced by the prosecution that a firearm had been discharged in or near the house at which the assault was alleged to have taken place.

9. During the trial the respondent sought to rely inter alia upon the provisions of s.19 of the 1984 Act as against the appellant. In opposing this course of action the appellant argued that the interview questions related to the discharge of the firearm, without reference to the burglary.

10. The trial judge ruled in favour of the respondent.

11. The appellant appealed to the Court of Appeal on a number of grounds, including on the drawing of adverse inferences pursuant to s. 19 of the 1984 Act.

12. The Court of Appeal (Birmingham J.) held:-

      “44. The point that is made is that Mr. Wilson was arrested under s. 30 of the Offences Against the State Act 1939 by Garda Phelan who suspected ‘that they had been involved in an incident whereby a firearm was discharged at Drumheath Drive’. Mr. Wilson argues that the section, which he says is a penal section and one which trenches on the traditional right to silence and must therefore be strictly construed, has not been complied with. The section provides for the admission of evidence ‘in proceeding for an arrestable offence’ when ‘at any time before he or she was charged with the offence, on being questioned by a member of An Garda Síochána in relation to the offence’. The point is made with some force that the appellant was not being questioned during the course of the interview in relation to a burglary, but rather a firearms offence and that he has never been charged with a firearms offence. The trial judge ruled on the matter at p. 16 of day 7 of the transcript. He did so in these terms:-

        ‘Now, it appears to me that when a person … is arrested and is lawfully detained that the gardaí can question an accused on matters that are peripheral but relevant to what an accused person has been arrested for and that they can do that prior to an accused person being charged with a particular offence and in short it appears to me that a person having been arrested, properly detained for a particular offence, or allowed latitude in questioning matters, in questioning an accused person as to matters that may be peripheral or relevant to the offence for which he was originally charged.’

      45. In referring to peripheral matters, the trial judge went further, considerably further, than he needed to. In the context of what happened at Drumheath Drive, the offences of possession of a firearm, involving the discharge of a firearm, and burglary are inextricably linked. There was no question of the prosecution seeking to invoke the statutory provisions by piggy-backing an offence other than the one with which he has been charged. Still less is there any question I the original arrest pursuant to s. 30 of the Offences Against the State Act operating as a colourable device.

      46. A similar issue had arisen in the case of DPP v Liam Bolger (No. 1) [2013] IECCA 6 and DPP v Liam Bolger [2014] IECCA 1, at paras. 44 to 59. There the appellant, who had been convicted of murder, sought leave to appeal and when the application for leave to appeal was rejected by the Court of Criminal Appeal, a motion was brought to that court seeking to set aside its judgment. This gave rise to the fact that there are two judgments in the case. In the course of both judgments, the court expressed the clear view that evidence giving rise to the drawing of adverse inferences was admissible, this in a situation where the accused had been arrested for offences of possession of firearms, but charged and convicted with the offence of murder. Accordingly this ground of appeal must also fail.

      47. In summary then, all of the grounds advanced by both appellants seeking to have their convictions set aside are rejected. The Court therefore will turn to the question of sentence in the case of the first named appellant, Mr. Alan Wilson.”

13. On the appellant’s application for leave to appeal, the Court granted leave to appeal on the issue of whether s. 19 of the 1984 Act may be utilised in a trial for an offence other than the offence about which an accused was questioned when the section was invoked

Submissions
14. Written and oral submissions were made on behalf of the appellant.

15. In essence the appellant submitted that he was not being questioned in relation to the offence of burglary but rather a firearms incident with which he was never charged, and that it was therefore not open to the respondent to use s.19 of the 1984 Act in relation to proceedings for an offence other than that for which he was arrested.

16. It was submitted that there is no ambiguity in the terms of s. 19 of the 1984 Act and that it is clear that it requires that the section may be used only in a trial for the offence for which an accused was questioned so that the section would have to be amended if it were to provide for its use for any other related offence.

17. The appellant submitted that the decisions The People (DPP) v. Bolger [2013] IECCA 6 and The People (DPP) v. Bolger [2014] IECCA 1, are of no assistance as they deal with a separate issue.

18. On behalf of the appellant it was submitted:-

        (i) Section 19 of the 1984 Act allows admission of evidence of an accused’s failure to answer questions only in circumstances where he is tried for an offence about which he was questioned.

        (ii) When the adverse inference provisions were invoked the appellant was questioned about committing a firearms offence. Therefore, the provisions were not admissible in a burglary trial.

        (iii) The admission of the inference provisions in a trial for another offence requires judicial legislation prohibited by Article 15 of the Constitution.

        (iv) The admission of the evidence of the appellant’s failure to answer questions was unfair in the circumstances.

        (v) The Bolger cases relied on in the Court of Appeal is of no assistance and deal with a separate issue.

19. The respondent submitted that during the course of the fourth interview conducted with the appellant in which the adverse inference provisions were invoked, he was, at all times, being questioned “in relation to the offence” with which he was ultimately charged.

20. Counsel referred to the context in which the appellant was asked to account for his presence at various locations.

21. Taking account of the particulars of the offence with which the appellant was charged, the respondent submitted that the adverse inference provisions invoked during this interview were put while he was being questioned “in relation to the offence” with which he was charged, albeit while he was detained for another offence. That, given the factual background as to what unfolded at 56 Dromheath Drive, the two offences were inextricably linked.

22. Counsel submitted that the relationship between the two arrestable offences was so close that to distinguish the two and exclude the inferences evidence would constitute an overly narrow construction of the legislation. It was submitted that the adverse inference provisions were properly admitted in evidence because the appellant was being questioned for the related offences of burglary and unlawful possession/discharge of a firearm. On the facts of the case the two offences were so intimately connected that to distinguish the two on this issue would be unjustified.

Decision
23. This appeal raises an issue of statutory interpretation.

24. The statute requiring to be interpreted, s. 19 of the 1984 Act, provides:-

      “ 19 – (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused –

        (a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence,

        or

        (b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part 1A of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
      (2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).

      (3) Subsection (1) shall not have effect unless –


        (a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and

        (b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.”

25. The memo of the interview with the appellant on the 4th June, 2009, at 20.54 by Garda Niall Phelan at Blanchardstown Garda Station includes the following:-

      “Q: Do you understand why you were arrested?

      A: I do, yeah.

      Q: You have been arrested under section 30 of the offences against the state act for a scheduled offence namely the unlawful discharge of a firearm at Dromheath Drive, Dublin 15 on 3/6/2009? Do you understand?

      A: Yeah.

      Q: Have you had an opportunity to consult with your solicitor?

      A: On the inferences thing, yeah.

      Q: Are you satisfied that you have received the necessary legal advice in relation to our intention to invoke inferences?

      A: Yeah, but I don’t fully comprehend the details but I’ve a fair idea.

      Q: Do you wish to further consult your solicitor?

      A: No.

      Q: I now wish to formally invoke section 19 of the CJA 84 as amended by section 29 of the CJA 2007.”

26. Having read out the section to the appellant the memorandum then continues to record that Garda Phelan stated:-
      “I will now explain to you in ordinary language the question that I wish to ask you.

      I am now requesting that you account for your presence in particular places on 3rd June 2009 as follows:

      That you were on Dromheath Drive, Mulhuddart, Dublin 15, and in particular the vicinity of no 56 Dromheath Drive, on the evening of Wednesday 3rd June 2009 at or around 7:45 pm that you entered no 56 Dromheath Drive, without the permission of the owner, that you entered this location in the company of David Crowley and while there engaged in an altercation with the occupants therein. That while at this location you were present when a firearm was discharged that you then left Dromheath Drive in a silver Toyota corolla, registration 00WX4970 in the company of Fergus O’Hanlon, David Crowley and Noel Cahill that you then travelled via Church Road, Mulhuddart arriving there at approximately 7:50 pm where you were subsequently arrested at old Navan road.

      I reasonably believe that your presence at these places was to participate in and carry out the unlawful discharge of a firearm at 56 Dromheath Drive, Mulhuddart, Dublin 15

      In plain language this section of the act means that if you do not answer the questions that I asked you concerning your presence at Dromheath Drive, Dublin 15, 56 Dromheath Drive, Dublin 15, Church Road, Mulhuddart, Dublin 15, Old Navan road, Mulhuddart, Dublin 15.

      And I reasonably believe that your presence in these places was to participate in and carry out the unlawful discharge of a firearm at 56 Dromheath Drive, d 15 on 3rd June 2009, then a judge can take this failure or refusal into account. Whether a charge should be dismissed, whether you have a case to answer and a judge [and] jury [can] take into account your failure or refusal to answer this question in deciding if you are guilty of the offence. Your failure or refusal can be used to support other evidence being put forward but failure or refusal on its own will not convict you of an offence. Do you understand that?”

      A. Yeah.

      Q. Are you sure?

      A. Yeah.

      Q. Do you wish to give an answer to the question I posed?

      A. I have nothing to say.

      Q. Do you wish to clarify anything that you have said or do you wish to add anything?

      A. I wish to add that I was pulled over by Gardaí on a road in Blanchardstown, I do not know the name of the road that’s it.

      Q. Do you wish to clarify or add anything?

      A. No.”

27. Thus, it is clear that, while certain facts were set out, the member of An Garda Síochána stated that he was of the reasonable belief that the appellant’s presence at the stated places was “to participate in and carry out the unlawful discharge of a firearm at 56 Dromheath Drive, Mulhuddart, Dublin 15”. That was the offence in respect of which s. 19 was invoked. It was therefore the offence in respect of which the appellant was warned as to the consequences of not answering questions, giving rise to his entitlement to seek legal advice before proceeding further. He was not warned, and was not given the opportunity to seek legal advice, in respect of questions about the burglary.

28. However, the appellant was charged with the offence of burglary. The statement of offence being:-

      “Burglary contrary to section 12(1) (b)(3) of the Criminal Justice (Theft and Fraud) Offences Act, 2001.”
And the particulars were:-
      “Alan Wilson on the 3rd day of June 2009 at 56 Dromheath Drive, Blanchardstown, Dublin 15 in the County of the City of Dublin did enter as a trespasser the building known as 56 Dromheath Drive, Blanchardstown, Dublin 15 and did commit an arrestable offence therein.”
29. Section 19(1) of the 1984 Act is set out previously in this judgment. It applies in any proceedings against a person “for an arrestable offence” evidence. That is the gateway.

30. Then, if evidence is given that the accused either before being charged with the offence, on being questioned by a member of An Garda Síochána, or when being charged with the offence or being informed he or she might be prosecuted for it, was requested to account for his presence at a particular place at or about the time of the offence alleged, then, s. 19 may apply, provided its requirements are met.

31. It might be appropriate, for convenience, to refer to the obligations which s.19 places on a relevant member of An Garda Síochána as relating to the “inferences caution”. It is clear that the following matters must occur before the section can be used at a trial. First, the member concerned must reasonably believe that the presence of the accused at a relevant place and time may be attributable to participation in the commission of “the offence”. Second, the member concerned must inform the accused that he or she is of that belief being a belief that the presence of the accused may be attributable to participation in the commission of “the offence”. Third, the member concerned must, in accordance with s.19(3)(a), tell the accused in ordinary language what the effects of failure or refusal to account may be. However, that effect may be that an inference might be drawn in relation to guilt of “the offence charged”. It is clear, therefore, that the inferences caution must relate to “the offence” which obviously relates back to the offence in respect of which, in the words of the first phrase of s.19 itself, there are “proceedings against a person”.

32. There is no ambiguity in that aspect of the section. The inferences caution must relate to the same offence as is involved in the proceedings ultimately brought and thus the same offence as that with which the accused is charged.

33. Then, if the accused failed or refused to give an account explaining his presence, the Court, in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences as appear proper, and the failure or refusal may on the basis of such inferences, be treated as, or capable of amounting to, corroboration of any evidence in which the failure or refusal is material.

34. In this context it must also be recalled that s.19(3)(b) precludes the operation of the inference provision unless the accused “was afforded a reasonable opportunity to consult a solicitor before such failure of refusal occurred”. The value of being entitled to consult with a solicitor would, of course, be significantly reduced if the suspect was ultimately prosecuted on a charge of a different offence to the one which was relied on in administering the inference caution and which was, therefore, in the mind of the accused and the solicitor when advice was being tendered.

35. In this case the proceedings were against the appellant for an arrestable offence, thus the gateway to s. 19 was opened.

36. The appellant was informed that he was arrested for the offence of unlawful discharge of a firearm.

37. Section 19 was formally invoked.

38. A member of An Garda Síochána requested the appellant to account for his presence at a named place where the appellant was present when a firearm was discharged.

39. A member of An Garda Síochána stated his reasonable belief that the appellant’s presence at the place in question was to participate in and carry out the unlawful discharge of a firearm.

40. The member of An Garda Síochána explained that s. 19 means that if the appellant did not answer the questions concerning his presence at named places, and he, the Garda, reasonably believes that the appellant’s presence in those places was to participate in and carry out the unlawful discharge of a firearm, that then a judge could take the failure or refusal into account.

41. It is clear on the evidence that the relevant member of An Garda Síochána appropriately invoked the inference caution requirements of s.19 but did so in relation to the offence of the unlawful discharge of a firearm. However, the appellant was subsequently charged with the offence of burglary contrary to s.12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

42. It is clear, therefore, that the offence in respect of which the inference caution was deployed was not the same offence as that in respect of which proceedings were brought against the appellant. Having regard to the clear wording of the section it follows that it is not possible to draw an inference in respect of the offence as charged when the inference caution machinery of s.19 was invoked in respect of a different offence.

43. It may well be that after an arrest an accused is questioned on multiple offences. Under both the Criminal Justice Act 1984 (as amended), and the Offences Against the State Act 1939, as amended, where a person has been arrested and questioned in respect of one offence, the member in charge of the Garda Station wherein he is detained may authorise questioning in respect of a separate offence. If so, inferences may arguably be raised on said offences.

44. Section 19 speaks of the inference caution being invoked by a garda requesting a person to account for his or her presence at a particular place at a particular time. As already noted it is said that this can be done either under subs. (a) when the accused is being questioned in relation to “the offence” or, under subs. (b), when the accused is either charged with “the offence” or informed that he or she might be prosecuted for it. It may be open to argument as to whether a member of the gardaí can make a request, thus triggering the inference caution, in relation to an offence other than one in respect of which the accused is being questioned.

45. An example may explain why this is so. A person might be arrested on suspicion of a particular arrestable offence and questioned in relation to that offence. However, as a result of the questioning, the garda in question may take the view that the suspect is guilty of a different offence either instead of or as well as the offence in respect of which he was arrested and questioned. If the relevant garda decides to charge the suspect with that different offence (even though not having questioned the suspect in relation to that offence up to that point) it is at least arguable that s.19 can be invoked in respect of that different offence provided that the garda forms the appropriate opinion under the section in relation to that different offence and invokes the inference caution by reference to that different offence.

46. However, whether that is an appropriate interpretation of the section is not a matter which arises in this case for the offence in respect of which the inference caution was invoked was the same offence in respect of which the appellant was arrested. I would, therefore, leave to a case in which the issue specifically arose, the question of whether it is possible to invoke the inference caution machinery in respect of an offence which was not an offence in relation to which the relevant accused was questioned.

47. In my view the decision in Bolger is not of assistance in this case. The facts in that case were that the appellant had been arrested on suspicion of the unlawful possession of a firearm at a location where a murder had taken place with a firearm. The questions giving rise to the inferences related to the presence of his van at the scene of the murder. He was subsequently charged with that murder.

48. In this case the appellant was arrested on suspicion of having been involved in the unlawful discharge of a firearm, and questioned in relation to that offence. However, he was charged with the offence of burglary involving the carrying out of an assault. There was no evidence that the gun was produced or discharged in the course of the assault. If he and the co-accused had been tried separately it is very doubtful that the evidence relating to the discharge of the firearm would have been admissible as against the appellant. Any other approach would require further legislation.

49. Consequently, s. 19 of the 1984 Act could not be applied, and inferences could not be drawn or applied, in his trial for the offence of burglary.

50. Section 19 may not be utilised in a trial for an offence other then the offence in respect of which the inference caution was expressly invoked. Any other approach would require further legislation.

51. Therefore, I would allow the appeal and quash the conviction.

52. Whether or not there is to be a re-trial is a matter for the respondent.












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