DPP v M: Accused’s constitutional right to silence cannot be held to be waived by ambiguous words

In this case,  Director of Public Prosecutions v M, the Supreme Court held that “the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words”.

 

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 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 

The Supreme Court granted KM leave 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?

 

O’Malley Iseult J wrote the judgment for a five judge panel of the Court.

In brief, the State argued that KM had not exercised his right to silence. He volunteered a statement and referred to it in answer to questions put to him. O’Malley J summarised the KM submission as,

24. The appellant submits that the trial judge and the Court of Appeal erred in their interpretation of what had occurred in the interview. That interpretation is summarised as being that the appellant said, in effect “I have nothing to say in response to this particular question other than what is written in my statement”, whereas the appellant’s contention is that he was saying “I have nothing to say in this interview other than what is written in my statement.”

 

O’Malley J noted a fact from Finnerty that is seemingly overlooked in later case law: Finnerty stated that he was innocent after he was cautioned by the arresting Garda. After advice from counsel, he later exercised his right to silence.

After extensive examination of the case law on the right to silence, and how that applies to the facts in this case, O’Malley J concluded:

66. Furthermore, it has always been accepted that a suspect is entitled to elect to answer some questions and to refuse to answer others. That is why practitioners and trial judges are used to the concept of editing interview memoranda. The making of a voluntary statement, as in this case, amounts to a clear waiver of the right to silence to that extent, but it does not follow that the suspect thereby waives the right in respect of either a prior or subsequent refusal to answer questions. I consider that the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words. Moreover, it is not appropriate to parse the words used as if they were the words of a parliamentary draughtsman. A consideration of the context is essential. I would therefore hold that it was incorrect for the trial judge to distinguish Finnerty simply on the ground that the appellant had not employed the “no comment” formula.

 

As the trial judge had not outlined why he considered that the probative value of the evidence outweighed its prejudicial effect, O’Malley J held that it should not have been admitted, allowed the appeal and quashed KM’s conviction.

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DPP v O’Sullivan: Constitutional right to advance notice of DPP’s case is not displaced by s 20 of Criminal Justice Act 1984

In this case Director of Public Prosecutions v O’Sullivan, the Supreme Court held that:

The constitutional right to know in advance the case to be made by the prosecution is not [] displaced in the operation of s.20 of the Criminal Justice Act 1984.

 

Section 20(4) provides:

Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.

 

Background

The DPP prosecuted O’Sullivan for burglary. Prior to trial, O’Sullivan gave the DPP notice that he would give evidence of an alibi, that he was at the home of his girlfriend (over 20 miles from the burgled premises) on the night previous to and at the time the burglary was committed. At trial, the DPP sought to introduce rebuttal evidence, that a garda had seen O’Sullivan at his mother’s home (close to the burgled premises) on the night previous to the burglary, as required by a curfew order. O’Sullivan objected to that evidence being admitted, as he was not put on notice by the DPP. He argued that it would render the trial unfair, as he would be deprived of the benefit of appropriate legal advice on how to conduct his defence. The trial judge allowed the evidence, and the jury found O’Sullivan guilty.

The Court of Appeal dismissed O’Sullivan’s appeal. It held that, as he had “dropped his shield”, there was no obligation on the DPP to give prior notice that it intended to introduce evidence that could impact on his character.

O’Sullivan sought leave of the Supreme Court for a further appeal. The DPP argued that the case did not meet the constitutional test for an appeal to the Supreme Court, that the facts were case specific and did not raise an issue of general importance. But the Court accepted that the case did raise an issue of general importance and granted O’Sullivan leave to appeal on the question:

What is the extent of the duty (if any) of the prosecution to disclose material in rebuttal of an alibi notice? If there is such a duty, when must disclosure be made?

 

Supreme Court

O’Malley Iseult J wrote the judgment for a unanimous five judge panel. She extensively discussed the history of the development through the common law and statute of the law on the disclosure of evidence. She cited Keane CJ from McKevitt v DPP (unreported, SC, 2003) on how disclosure in Ireland is a constitutional duty:

[T]he prosecution are under a duty to disclose to the defence any material which may be relevant to the case which could either help the defence or damage the prosecution, and if there is such material which is in their possession they are under a constitutional duty to make that available to the defence.

 

O’Malley J stated that, for the purposes of this case, she was prepared to accept the proposition from R v Brown (Winston) [1998] AC 367 that the prosecution could introduce evidence rebutting an alibi without notice where that evidence only goes to the credibility of the witness [78].

But she made a distinction:

There is a significant difference between saying “You should not believe this person because we have shown that he is not a credible person” and saying “You should not believe what this person says about X fact, because we have evidence that contradicts him”. The second goes to proof of a substantive issue in the case [80].

 

Allowing O’Sullivan’s appeal, OMalley J stated:

82. However, the evidence of Garda O’Driscoll could not be seen as simply aimed at establishing that the appellant should not be believed. The alibi notice made the location of the accused an issue in the case, since alibi evidence, as defined in the Act of 1984, evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. Garda O’Driscoll’s evidence purported to place the appellant at a particular location, proximate to the scene of the offence, at a time when, according to his own evidence, he was not there. In my view it must be seen primarily as evidence relating to a disputed factual issue, the issue being the location of the appellant during the night and early morning in question. The added description of the evidence as “formal” is not of assistance in the circumstances.

83. There is the further consideration that, even if the analysis of the evidence as going only to credibility was correct in this particular case, it remains a disputed piece of evidence. To say that the defence should have known about it and anticipated it is to assume its truth, but that is not a permissible approach in terms of logic.

DPP v Solowiow: Trial judge must assess defendant’s lies in time, nature and circumstances of offence when directing jury

In this case, Director of Public Prosecutions v Solowiow, the Supreme Court held that the trial judge had given the jury adequate warning on the inferences they could draw from Solowiow’s original false accounts of events. That he did not direct the jury that Solowios’s lies were not evidence of guilt of murder rather than manslaughter did not cause an injustice.

 

Background

In May 2012, Solowiow murdered his girlfriend Mary Ryan by fracturing her larynx and causing her blunt force trauma. When first interviewed by gardai, Solowiow stated that Ryan’s injuries were caused by three men who assaulted her on the street. Later he admitted to causing Ryan’s death while in a fit of rage. But he alleged that he did not mean to harm her.

The DPP prosecuted Solowiow for murder; he argued a partial defence of provocation, which, if accepted by a jury, reduces the offence of murder to manslaughter. In October 2013, the Central Criminal Court convicted Solowiow of murder. Solowiow appealed that decision to the Court of Appeal on a number of grounds, all arguing that the trial judge failed to direct the jury correctly.

In April 2016, the Court of Appeal (here) dismissed Solowiow’s appeal. That judgment quotes extensively from the trial judge’s direction to the jury. [22 – 29] dealt with the trial judge’s direction to the jury on how they should consider Solowiow initially lying to gardai. Solowiow sought leave of the Supreme Court for a further appeal on that one issue.

In granting leave to appeal, the Supreme Court summarised Solowiow’s argument on the trial judge’s direction to the jury relating to his early denial of causing Ryan’s injuries:

It is said that it requires to be made clear to the jury in the judge’s charge that such evidence is not evidence of guilt of murder as such but rather is evidence which may go to the credibility of the accused and, to the extent that it may lead to a legitimate questioning of that credibility, may be taken into account by the jury in conjunction with all of the evidence on provocation which may be given at the trial. It is said that the charge in this case does not do so, that there is no Irish authority on the question and that the question of whether a charge should so do raised an issue which meets the constitutional threshold.

However, the Court also allowed the DPP to argue that it was not open to Solowiow to appeal on the grounds raised, as he did not make a requisition to the trial judge to amend his jury direction on that issue.

 

Supreme Court

MacMenamin J wrote the judgment for the unanimous five judge panel. He outlined the law in relation to direction of a jury where a defendant had given a false account of their involvement, known as the “Lucas Warning”:

35. Standing back from the facts of this case, it is clear that the core principle in R v Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.

 

That test was later refined in England and Wales for cases where the defence of provocation is raised: R v Richens [1994] 98 Cr App Rep 43. MacMenamin J outlined the relevant facts:

41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.

 

In this case, the trial judge had given a Lucas Warning, but Solowiow argued that the trial judge should have gone further and specifically directed the jury that his lies could not provide proof of his guilt of murder as opposed to manslaughter.

MacMenamin J approached this appeal from the question of the overall adequacy of the trial judge’s direction. Dismissing the appeal, he stated:

  1. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
  2. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.

 

On the second issue of whether Solowiow had a right to appeal at all, given that he had not made a requisition to the trial judge to amend his jury direction, MacMenamin J held for the DPP, citing Kearns J in Cronin (No 2) [2006] 4 IR 329:

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …

New Appeal: Must a trial judge give an accomplice warning, even where that’s not requested by counsel for the defence?

In this determination, Director of Public Prosecutions v Fitzgerald, the Supreme Court granted Fitzgerald leave to appeal on the question:

Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.

 

Background

A jury convicted Fitzgerald of murder. At trial, Kelly gave evidence for the prosecution that Fitzgerald had been in her home prior to the killing; that he was in possession of a shotgun; that he left her home with the shotgun; that she heard shots fired at a neighbouring house; and that Fitzgerald returned to her home with the shotgun claiming to have killed the victim.

Fitzgerald was represented at trial by a solicitor, barrister and Senior counsel. The trial judge inquired whether Fitzgerald wanted the jury to be given an accomplice warning. Fitzgerald’s legal team did not request a warning.

After his conviction, Fitzgerald changed solicitor and appealed his conviction to the Court of Appeal. Among other grounds, he claimed that his conviction was unsound due to the trial judge not giving the jury an accomplice warning on Kelly’s evidence. The Court of Appeal accepted that Kelly was an accomplice but dismissed his appeal on grounds that the trial judge was not required to give a warning where the defendant had not requested one. Fitzgerald applied to the Supreme Court for leave to appeal.

 

Supreme Court

The State objected to Fitzgerald’s application, arguing that the law in this area is clear and no issue of general importance arose. Also, it argued that Fitzgerald chose to undermine Kelly’s evidence by other means, and if the trial judge had done so it would have been an interference with Fitzgerald’s right to conduct his defence in the manner of his own choosing.

But the Court determined that:

In the circumstances of this case, it is clear that the Court of Appeal viewed Ms. Kelly as an accomplice; notwithstanding that view, having regard to the way in which the defence was conducted, it concluded that no corroboration warning was necessary in respect of her evidence. The question therefore arises as to whether such a warning is required or not. The Court is satisfied that the Applicant herein has raised an issue of general public importance, namely:

“Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.”

DPP v Rattigan: Statutory changes to rules of evidence can apply in any trial after commencement of Act

In Director of Public Prosecutions v Rattigan, the Supreme Court unanimously held that s 16 of the Criminal Justice Act 2006 “does not breach the principle against retrospectivity since it brought about a change in the rules of evidence that could only apply to trials taking place after the Act came into force”. The Court split 3/2 on the issue of whether the trial judge’s concluding remarks to the jury reflected his personal opinion and risked influenced the jury. The majority held that he did and allowed Rattigan’s appeal.

 

S s 16 of the Criminal Justice Act 2006

S 16 (here) permits a trial judge to admit statements made outside of court into evidence in defined circumstances; such as, where a witness’s evidence in court contradicts or differs from their statement made prior to trial.

 

Background

Declan Gavin was stabbed to death in 2001. Witness statements identified Rattigan as the murderer. The investigating gardai sent their file to the DPP in March 2002. In September 2003, the DPP ordered that Rattigan be arrested and charged with Gavin’s murder. The District Court ordered his detention. But after seven appearances where the DPP failed to serve the book of evidence, the District Court struck out proceedings.

In 2005, the DPP again ordered that Rattigan be arrested and charged with the same offence. Rattigan brought judicial review proceedings seeking to prohibit his trial on grounds of delay. The High Court refused that application in 2006. In 2008, the Supreme Court held that there was culpable and unjustified delay by the DPP. But found that Rattigan had not demonstrated any real risk of an unfair trial and refused his appeal.

In early 2009, the first trial collapsed. In December that year a jury convicted Rattigan of murdering Declan Gavin. Rattigan appealed to the Court of Criminal Appeal, challenging the legality of the trial judge permitting the DPP to avail of s 16 of the 2006 Act and the legality of the judge’s concluding remarks to the jury. The Court of Criminal Appeal dismissed Rattigan’s appeal on both grounds but certified a question of law of exceptional public importance to the Spreme Court:

Does s. 16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the said Act?

 

Supreme Court

Rattigan argued that s 16 could not act retrospectively to statements made before the coming into force of the 2006 Act. But even if it could, the DPP should not be allowed in this case to benefit from that office’s culpable delay in prosecution by availing of a statutory development in the law on the admissibility of evidence which came into force during that unjustified period of delay. The Court also allowed argument on the issue of the trial judge’s direction to the jury.

O’Malley J wrote the majority judgment. She agreed with the Court of Criminal Appeal’s analysis that the law on retrospectivity applies to changes to substantive law and not to the rules of evidence; and its rejection of Rattigan’s argument that there is no clear distinction between substantive and procedural law. Rattigan had argued that that distinction is a matter of degree. The more serious the right affected, the more reluctant a trial judge should be to draw that distinction. The Court of Criminal Appeal rejected that test as vague and unpredictable. O’Malley J did also. And she rejected Rattigan’s grounds of unfairness due to delay, as he had not identified any right affected by the utilisation of s 16. But she gave this guidance:

45. However I think it worth noting here that the question of delay might well, in some circumstances, give good grounds for a refusal on the part of the trial judge. For example, in a case involving civilian witnesses it is always likely that oral evidence will differ to some degree from the statements of proposed evidence contained in the Book of Evidence. Because of the process by which they are taken, written statements may have a structure, coherence and attention to sequential detail that may be absent when the witness attempts to give a narrative in oral evidence. Any significant lapse of time between the making of the statement and the trial is capable of exacerbating this situation and of impairing the accuracy of a witness’s memory in any event. This is a normal feature of human life. In my view trial judges should be careful not to permit the prosecution, in cases where it has been responsible for delay, to “improve” its evidence by invoking the section in circumstances not within the intent of the legislature.

Dunne J agreed with the majority on the use of s 16, but dissented on the issue of the trial judge’s direction to the jury. Charleston J agreed with Dunne.

The trial judge gave the following conclusion to his summation:

“Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man was someone else, then there’s no doubt that Mr. Rattigan has been most unfortunate. He was unfortunate, in the first instance if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that it should be located four inches away from a point where a swab was taken, which was established to match that – the DNA profile matched the blood of Mr. Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved in the incident happened to use the same term of abuse – “rats” – as a term of abuse that he used when interviewed by the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that there will be a particular section of the public for whom it is probably commonplace. Then, unlucky that he would compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what he’s supposed to have said was in fact said, and that the prints on the window and the door are, in fact, his.

So, unlucky. However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to your intelligence.”

Dunne J and Charleton J agreed with O’Donnell J’s statement in the Court of Criminal Appeal:

At the end of this lengthy period there was however a large number of individual pieces of evidence which required to be gathered and synthesised. When that exercise was done certain observations might readily be made about the logical conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral presentation which will be heard only once by the jury. Ultimately this is a matter for the judgment of this Court. Taken in the overall context of this case, the Court does not consider that the charge to the jury can be said to be unbalanced or that the trial judge commented in a fashion which was inappropriate for a trial judge. Accordingly, these grounds of appeal fail.

But the three judge majority of the Supreme Court found that the trial judge’s comments “went further than were desirable” and may have influenced members of the jury.

DPP v Wilson: DNA evidence on its own is sufficient, in principle, to prove guilt to the criminal standard

Here, The Supreme Court held that:

Gardaí did not breach Wilson’s constitutional right to privacy by collecting his discarded cigarette butts to extract a DNA sample.

“There is no reason in principle why a jury may not be satisfied to the criminal standard of the identity of the perpetrator of a crime where the only evidence of such identity derives from DNA profiling” [9].

The trial judge was not obliged to warn the jury of  a danger in convicting an accused based solely on DNA evidence.

Background

In 2010, Wilson, the appellant, shot and killed Daniel Gaynor on a public road in Dublin. As he ran away from the scene, Wilson discarded a revolver, a cotton glove, a peak cap and a hoodie. On forensic analysis, firearm residue was found on the glove, the sleeve of the hoodie and on the cap. And a DNA sample was also recovered. Gardai suspected Wilson, based on confidential information, and arrested him for questioning. Wilson refused to provide a DNA sample voluntarily. The detectives in charge of the investigation swept any area of the yard, photographed it and allowed Wilson outside to smoke a number of cigarettes. Wilson discarded the cigarette butts on the yard.  The detectives then collected those cigarette butts for DNA analysis. Wilson’s DNA from the cigarette butts matched the sample from the clothing recovered from the scene of the murder.

 

A jury convicted Wilson of murder based solely on the DNA evidence. The Court of Criminal Appeal upheld that conviction but certified a question for appeal to the Supreme Court:

Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody admissible evidence at his trial?

During case management, the Court granted leave on two additional questions:

When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon the prosecution case being closed, should a judge withdraw a case from the jury upon an application of the defence that there was no case to answer?

Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against the accused is DNA evidence alone?

 

Supreme Court

A three judge panel heard the case and issued a joint judgment.

 

Admissibility

The Court acknowledged that any accused in custody is in a vulnerable position and dependent on the Gardaí for the provision of facilities. “It is partly for that reason that the courts will give extra scrutiny to events occurring during detention, to ensure that the rights of a vulnerable person are not breached” [4.30] . But that does not cause the substantive content of a person’s rights in custody to rise above the rights of a person at liberty [4.31].

Finding that the Gardaí could collect the cigarette butts, the Court stated:

4.35 Where the detained person indicated an intention to resist the taking of the sample, and the Gardaí had an alternative source lawfully in their hands, it would not accord with principle to elevate the privacy rights of the person in custody – the whole purpose of which is investigatory – beyond those of either a person who complied with the statutory regime or a person at liberty. Since it is accepted that the latter would have no cause for complaint if his cigarette butts were picked up in a public place, or in an authorised search of his premises, it is impossible to hold that the rights of the detained person are breached by the same procedure in respect of things that he discards. Equally, it would clearly be contrary to public policy to hold that the Gardaí were in the circumstances constrained to use force, thereby risking injury to both the suspect and themselves, and that a failure to use force rendered the picking up of the discarded items unlawful.

 

Probity of the evidence

Dr O’Sullivan, the expert witness, stated that, without testing every human alive, it is not possible to rule out that any two humans could share the same DNA profile. But the likelihood of any two people having a DNA match is one in a thousand billion. That reduces to one in 27,400 in the case of siblings.

 

Prosecutor’s fallacy

The prosecutor’s fallacy is the confusion of two different concepts: the likelihood that two randomly chosen individuals could share a set of genetic characteristics and the likelihood that any other person shares the genetic characteristics as an accused person.

To demonstrate the issues this raises, the judgment gives an example involving a crime committed by a male with a genetic characteristic shared by one in every one thousand people. That would mean that there would only be approximately 400 males in the Dublin area who share that genetic characteristic. But a suspect with that characteristic would not be any more likely to be guilty than the other 399. And guilt beyond a reasonable doubt could not be sustained on evidence that an accused held that genetic characteristic.

In this case, though, the trial court was dealing with much larger figures than one in one thousand. And the Court compared DNA evidence to fingerprint evidence, on which a conviction can be solely based, but on which no statistical evidence as to reliability compared to DNA evidence is considered [5.48]. The Court also considered comparisons to witness testimony which can be fallible, or even false, and for which no consideration as to statistical reliability is given [5.52].

Advising that a jury should consider the manner of the collection and analysis of DNA evidence, the Court stated:

5.59 We would wish to emphasise, therefore, that there are a whole range of factors which need to be assessed before determining whether a so-called “cold hit” DNA case, where there is no other evidence of identity beyond the DNA profiling evidence, can properly provide sufficient evidence to prove identity to the criminal standard. However, where the other elements of the equation are robust, it does not seem to us that the fact that there may be a highly theoretical and tiny mathematical possibility of a false positive can, in and of itself, require that the case be withdrawn from the jury. To take that view would be to suggest that we should be happy to take remote risks with evidence which is not capable of detailed statistical analysis but not happy to take potentially even more remote risks with evidence which may, in fact, be a lot more probative but is capable of statistical analysis to demonstrate an extremely small and very remote possibility of a false positive.

 

Direction to Jury

While providing general guidelines on directions, the Court rejected Wilson’s claim that the trial judge should have warned the jury about convicting solely on the DNA evidence. The Court held:

For the reasons set out earlier, we do not consider that this ground is well made out for we do not consider, having regard to the general principles by reference to which it has been determined that warnings are required in other cases, that a warning is required in a case where the only evidence of identity is confined to DNA profiling [9.4].

DPP v Wilson: Re s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence)

Here, the Supreme Court held that s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence) “may not be utilised in a trial for an offence other than the offence in respect of which the inference caution was expressly invoked” [50].

 

Background

S 19 of the 1984 Act (as amended by s 29 of the Criminal Justice Act 2007) (here) allows for an inference to be drawn from a suspect’s failure to account for their presence at a place when an offence was committed.

In 2009, two men entered a house in Blanchardstown, one armed with a meat cleaver and the other with a gun. Two shots were fired. Witnesses at the scene identified Wilson as the one in possession of the meat cleaver.

Gardai arrested Wilson on suspicion of having been involved in the unlawful discharge of a firearm. During questioning, gardai invoked the adverse inferences provision of s 19 of the 1984 Act.

The DPP charged Wilson under s 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. It is alleged that he entered the building as a trespasser and committed an assault causing harm.

At trial before the Dublin Circuit Criminal Court, the DPP proposed to rely on s 19 of the 1984 Act. Wilson objected on grounds that he was questioned in relation to the unlawful discharge of a firearm, not assault, and that s 19 cannot be invoked in relation to an offence for which he was not questioned. The trial judge ruled in favour of the DPP. On appeal, the Court of Appeal upheld the trial judges decision on grounds that the offences for which Wilson was questioned and charged were inextricably linked. Wilson sought leave to appeal that decision to the Supreme Court.

In this determination (DPP v Wilson), the Supreme Court granted Wilson leave to appeal on “whether the section [s 19 of the Criminal Justice Act 1984] may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked”.

 

Supreme Court

Chief Justice Denham wrote the main judgment for a unanimous five judge panel; McKechnie J wrote a concurring judgment.

The case raised only an issue of statutory interpretation.

Denham CJ set out An Garda Síochána’s obligations under s 19 and the operation of the adverse inference thereafter:

31. … 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.

 

Allowing Wilson’s appeal, Denham CJ held:

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.

New Appeal: Re s 4 of the Prevention of Corruption Act 1906 to 2001

In this determination, DPP v Forsey, the Supreme Court granted Forsey leave to appeal against his conviction for corruption while he was an elected member of Dungarvan UDC. The Court determined that it is necessary in the public interest to clarify two points of law:

 

1. Is the burden of proof against the presumption of corruption contained in s 4 of the Prevention of Corruption Act 1906 to 2001 a reasonable doubt or the balance of probabilities?

2. Should the jury consider the scope of the accused’s position or office (their pull) in considering if corruption took place?

 

Law

S 4 of the Prevention of Corruption Act 1906 to 2001 (here) creates a presumption of corruption by a public office holder who receives a gift, consideration or advantage from someone with an interest in the discharge of the office holder’s function.

 

Background

In 2006, Forsey lobbied members of Waterford County Council to have land close to Dungarvan, belonging to a property developer (Ryan), rezoned for development. When he was unsuccessful, he sought to have that land brought under the control of Dungarvan UDC. During the same period Ryan made three payments to Forsey totaling €80,000. The two men made a written loan agreement relating to that money.

 

In 2012, a jury in Waterford Circuit Court found Forsey guilty of corruption for receiving the €80,000 in return for his endeavours to have Ryan’s land rezoned. Forsey appealed his conviction to the Court of Appeal. His main grounds was that the trial judge misdirected the jury that the burden lay with him to show that Ryan’s payment was not corrupt and that the standard of proof was on the balance of probability. Secondly, Forsey questioned whether the presumption of corruption imposed conflicted with the Constitution or the European Convention on Human Rights. And thirdly, Forsey argued that the trial judge should have directed the jury to consider the scope of his office and the extent of the influence that it is alleged that Ryan sought to purchase (whether Forsey had the pull to secure rezoning was an essential element of the crime).

 

In 2016 the Court of Appeal (here) dismissed Forsey’s appeal on all grounds. He applied to the Supreme Court for one further appeal. The Court determined that Forsey had raised issues of general interest and it is in the public interest that those issues be resolved. The Court certified three questions:

1. Whether, in light of the facts, including that there was no requisition, the applicant is now entitled to revisit the points sought to be argued?

2. What is the scope of a person’s office or position in the consideration of the correct interpretation of the offence of corruption?

3. Are the presumptions contained in s 4 of the Act legal, as opposed to evidential burdens.

New Appeal: Must the DPP clarify inconsistencies in a witness’s statement before deciding to prosecute?

In this determination, DPP v DH, the Supreme Court granted the DPP leave for a leapfrog appeal from the Central Criminal Court on three questions:

 

(i) Does either the prosecution or the defence have a right of appeal against an order of a trial judge staying a trial pending the taking of further steps by the prosecution?

(ii) In considering whether to stay a criminal trial after its commencement, is a trial judge bound to apply the same test as that appropriate to judicial review proceedings aimed at quashing a decision to prosecute?

(iii) Does the Director of Public Prosecutions have a duty to clarify serious inconsistencies in a witness’s statements before deciding to prosecute, where such inconsistencies may go to the reliability of that witness’s evidence, or is it sufficient that disclosure of such inconsistencies is made to the defence?

 

Background

This case concerns allegations of numerous counts of rape and indecent assault of a young girl dating back to 1987 – 1989.

At trial, DH sought to have the prosecution stayed on grounds of culpable prosecutorial delay. In a voir dire trial, the trial judge did not accept DH’s arguments on delay. However, it emerged that the girl’s social worker (Ms C) had noted in 1995 that the girl was not certain that intercourse had taken place; although at the time of trial the complainant was certain that it had.

The trial judge ordered a stay on the prosecution of the rape charges, stating:

This is a piece of evidence that might indicate that [the complainant’s] evidence to the Court, while truthful and honest might not be reliable and the duty was on the prosecution to explore that evidence, bearing in mind that the risk of an unfair trial that everyone accepts can follow from long delay.

The DPP sought leave for a leapfrog appeal against that order directly to the Supreme Court. The constitutional threshold for a leapfrog appeal are (1), an appeal must be in the interests of justice and (2), there must be exceptional circumstances.

The DPP did not argue that she could not fulfill the terms of the stay. She argued that she met the constitutional threshold as she had no right of appeal to the Court of Appeal where the Central Criminal Court order is not an acquittal, conviction or sentence (1), and it would lead to an inequality between her and the accused if the Supreme Court did not grant leave (2).

The Court determined that the DPP met the constitutional threshold and granted leave.

On appeal “the Director intends to argue that the trial judge applied an incorrect test in exercising her jurisdiction to impose a stay; that she failed to have regard to the limited grounds upon which a decision to prosecute can be reviewed by the courts; that she erred in considering that there was a real risk of an unfair trial having regard to the fact that the documents in question had been disclosed; that she focussed disproportionately on the hearsay accounts of words used by the complainant in the earlier investigations; and that she erred in concluding that the alleged inconsistencies justified the staying of a prosecution”.

Donegal Investment v Danbywiske: Trial judge must explain reasons for disregarding expert evidence

Here, the Supreme Court (Clarke J writing) held that the High Court trial judge (McGovern J) erred by not expressly explaining his reasoning for adopting a different approach for the valuation of shares to that proposed by expert evidence by either parties to the dispute.

 

Background

The background to these proceedings are explained in the Court of Appeal judgment (here). The parties are shareholders in a holding company, Elst, which owns Monaghan Mushrooms. Donegal issued High Court proceedings under s 205 of the Companies Act (shareholder oppression). The High Court ordered that Danbywiske purchase Donegal’s shares.

In the High Court (here), McGovern J heard expert evidence from both sides but chose a different method of valuation from either of the proposed methods. He ordered that Danbywiske pay Donegal €30.6 million for its 30% share in Elst.

The Court of Appeal overturned that valuation and ordered that the case be returned to the High Court for a determination of value. The CoA held that McGovern had not adequately explained his reasons for reaching his determination on value. Danbywiske applied to the Supreme Court for leave to appeal that decision.

The Supreme Court granted leave on three questions:

(a) Whether the principles set out in Hay v O’Grady as to the limits of an appellate court’s review of fact apply both generally and to expert testimony and, as such, constitute a complete code which cannot be departed from?

(b) Whether these principles were departed from in the rulings of the Court of Appeal on the findings of fact in the High Court relating to share valuation?

(c) Does the costs order of the Court of Appeal require to be reviewed?

Dismissing the appeal the Supreme Court stated:

9.1 For the reasons set out in this judgment I am satisfied that it is open to a trial judge to adopt a methodology or approach which differs from each of the approaches advocated in the expert testimony tendered by the parties. However, where a trial judge is persuaded to adopt a different approach, it is necessary for the judge to structure the judgment in such a way that either expressly explains why the approach adopted is considered to be appropriate notwithstanding the expert evidence tendered or that, at a minimum, the reasoning of the trial judge in that regard can be inferred with some reasonable level of confidence.

9.2 There is even some doubt as to the precise approach actually adopted by the trial judge in this case. But even if the approach actually adopted can be inferred to a sufficient level of confidence, I am satisfied that the Court of Appeal was correct to hold that the reasons why the trial judge utilised the approach which he did are neither clear from the judgment nor can safely be inferred.

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