New Appeal: Can an accused deny guilt and later exercise his right to silence?

speakIn this determination, DPP v KM [2017] IESCDET 5, the Supreme Court granted KM leave to appeal on the question:

Where a person has volunteered an exculpatory statement and thereafter responds to questions by referring to the statement and saying that he or she has nothing further to say, should such responses be seen as:

a) an exercise of the right to silence, or

b) relevant and probative evidence in the trial?

 

Background

Gardai investigated an allegation of indecent assault made against KM. KM produced a prepared written statement at his interrogation, in which he claimed the allegation was “blatantly false”. He  responded to all questions put to him by stating he had nothing to say other than what was in the written statement.

At trial, KM objected to the prosecution introducing the transcript of the interview into evidence. KM argued that that would interfere with his right to silence. The Circuit Court trial judge allowed the prosecution to introduce the evidence. The court convicted KM of indecent assault.

KM appealed that decision to the Court of Appeal

 

Case Law

In People (Director of Public Prosecutions) v Finnerty [1999] 4 I.R. 364 the Supreme Court held that the right to silence would be significantly eroded if a jury was invited to draw adverse inferences from an accused’s refusal to answer questions during investigation. In that case, Finnerty made no statement and had refused to answer all questions put to him. The Court set out principles for future cases:

(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.

(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.

 

Court of Appeal

The Court of Appeal (here) dismissed KM’s appeal. The CoA distinguished this case from Finnerty, stating:

There is a great deal of difference between saying “No comment” or “I don’t wish to say anything”, on the one hand, and saying, having already in fact commented, that “I have nothing to add to what I have said already”, on the other hand [25].

 

Supreme Court

Granting leave to appeal, The Court determined that KM had raised a point of law of general public importance which met the constitutional threshold for a further appeal.

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