Director of Public Prosecutions -v- Wilson, [2017] IESC 53 (2017)

Docket Number:15/2016
Party Name:Director of Public Prosecutions, Wilson
 
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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 ProsecutionsRespondent

and

Alan WilsonApplicant/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.’

  13. 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.

  14. 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...

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