The people (at the suit of the director of public prosecutions) v. Alan wilson - (17 Sep 2018)

Inferences could be drawn at trial only where Section was invoked

Criminal

Matter Arising out of an incident which occurred on the 3rd June, 2009, Mr. Wilson, the Appellant, was arrested on suspicion of the unlawful possession of a firearm. During the course of his detention, the interviewing gardaí, by reference to this offence, invoked Section 19 of the Criminal Justice Act 1984, as substituted by Section 29 of the Criminal Justice Act 2007. This is a provision whereby inferences may be drawn at trial from the failure of the detained person to account for his presence at a particular place at or about the time of the commission of an offence. Subsequent to this detention, he was charged with a single count of burglary contrary to Section 12(1)(b) and 12(3) of the Criminal Justice (Theft and Fraud) Offences Act 2001 ("the 2001 Act"). Leave to appeal was granted on the single issue of 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.

Inferences can be drawn at trial only where the section was invoked during questioning in respect of the same offence with which the accused was subsequently charged. This, is the natural and ordinary meaning of the words in question, which must of course be read strictly given the penal nature of the section. The right to silence and the privilege against self-incrimination are enshrined at the highest level of our legal order and the Constitution will not abide any greater encroachment thereon than the words of the section expressly and unambiguously sanction. This interpretation is also consistent with according constitutional fairness of procedures to the suspect.

The inference provisions may only be invoked in respect of questioning which relates to the offence ultimately charged. In present case, the memorandum of interview does not contain a single reference to Mr. Wilson's involvement in a burglary. A person may understandably keep his silence when questioned in relation to one offence, but might venture an explanation, if the same facts were legally characterised in a different way.

Moreover, at a legal level, the offences are not inextricably linked, as claimed. The indictment records that, the Appellant was charged with burglary contrary to Section 12(1)(b) and 12(3) of the 2001 Act, with the particulars being that he "did enter as a trespasser the building known as … and did commit an arrestable offence therein to wit, assault causing harm". Thus, he was charged with burglary involving the carrying out of an assault, but, as the Chief Justice has noted, there was no evidence that, the gun was produced or discharged during this assault. Therefore, the only common link between the offences is the shared underlying facts but, that alone is not sufficient. Mr. Wilson was not questioned about a burglary; it was not put to him that he was involved in a burglary, or that inferences could be drawn in relation to his failure to answers questions concerning his presence at locations relevant to a burglary. Therefore, it was not permissible to draw inferences at his trial for burglary from his silence during questioning related to another offence. Accordingly, the appeal is allowed and the Appellant's conviction is quashed.

Tags : OFFENCE   TRIAL   CONVICTION   VALIDITY  

Share :