Director of Public Prosecutions -v- M,  IESC 21 (2018)
|Party Name:||Director of Public Prosecutions, M|
THE SUPREME COURT[Supreme Court Appeal No. 146/2016]
[Court of Appeal No: 283/2015]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENTANDK.M.
Judgment of Ms. Justice Iseult O’Malley delivered the 21st day of March 2018
The appellant was granted leave to appeal to this Court under Article 34.5.3° of the Constitution on the following issue:
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?
The issue arises in the following circumstances. The appellant was convicted on one count of indecent assault after a trial in which evidence of a prepared written statement given by him to investigating gardaí was followed by evidence that, in reply to subsequent questions put by the gardaí, he had referred to the statement and said that he had nothing further to say. The appellant contends that in so doing he was exercising his right to silence. He claims that he was irretrievably prejudiced by the disclosure of the full interview to the jury, and that this was a clear violation of his right to silence contrary to the principles confirmed in DPP v Finnerty  4 I.R. 364. The three rules set out in Finnerty apply to evidence relating to questioning of the accused while in garda custody and are as follows
(i) 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.
(ii) 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.
(iii) 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.
The respondent argues that on the facts of the case the accused was not exercising his right to silence, and that the contents of the interview were relevant and probative evidence which could assist in assessing the credibility of the statement.
The appellant is a medical doctor. The complaint giving rise to the trial was an allegation that in December, 1989, in the course of a routine visit to the home of the complainant (“Ms. H”) to treat her terminally ill mother, he subjected the complainant to a medical examination and while so doing he assaulted her indecently.
The complaint to the gardaí was made in October, 2010. The appellant was arrested on the 22nd June, 2011, for the purpose of questioning. It seems obvious that he had previously been made aware of the complaint against him, and he brought with him to the station a prepared statement.
At the start of the interview the appellant was cautioned in the standard fashion as follows:
“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.”
The appellant confirmed that he understood the caution and that he had been offered the services of a solicitor. He was then asked various uncontroversial questions about, for example, his personal and family life, professional background, and the location and layout of his surgery. He replied fully to all such questions. Next, he was asked if he remembered a girl by the name of M.H being a patient of his, to which he responded “I have a statement here in relation to [M.H]. Other than that I have nothing to say.” The gardaí requested that the statement be read out and signed and the appellant complied with that request.
According to his statement the appellant recalled that M.H. had been a patient around the time of the death of her late mother, but he did not retain records from that time. He recalled the final illness of the late Mrs. H. and that he attended in her home, several times a week, up to her death. He did not recall having been at the house after that. The complainant had attended him as a patient on a few occasions around the time of her Leaving Certificate. He did not recall having physically examined her on any occasion. He said that he was “deeply shocked and greatly distressed” that a patient would make allegations against him that were “blatantly false and extremely damaging”.
The interviewing Garda then asked a number of questions arising from the complainant’s written statement. These commenced with a query as to whether it was correct that M.H. had been a patient of the appellant from 1989 to 1992, and finished by reading out from her statement the details of the allegation of assault in her home. The appellant was asked if he recalled that happening. In response to each question the appellant replied with the sentence “I have nothing to say other than what’s written in my statement” (or some slight variation thereof).
By agreement between counsel these supplementary exchanges were not introduced in evidence in the first trial, which ended in a disagreement. At the second trial the appellant’s statement was adduced in evidence before the jury in the normal way. Counsel for the prosecution then proceeded to lead evidence of the additional questions and responses. It is clear that this was done without notification to counsel for the defence. The latter did not immediately object, because, he says, of fear of drawing the attention of the jury to the evidence in the event that the objection was unsuccessful. However when the jury went out for lunch he immediately informed the trial judge that he was going to apply to have the jury discharged but that he needed to look up some law. The judge asked him why, and counsel responded that the evidence had been inadmissible under the Finnerty rules. Counsel said that he had expected that the evidence given would be confined to the written statement made by his client (and he therefore had not raised an objection in advance).
The trial judge refused to discharge the jury, saying:
“Well, it is not at all comparable with Finnerty, because what the man says is not that I’ve no comment, I rely entirely on what I said in my statement, which is completely different to Finnerty and would not be a ground for discharging the jury whether you look up law or not.”
The appellant then went into evidence. He was not asked about the interview, either in evidence in chief or in cross-examination. No comment on any part of the interview was made by counsel on either side in their closing speeches. In summarising the evidence in his charge to the jury, the trial judge referred to the appellant’s written statement and sworn evidence, and summarised the key assertions. He did not refer to the contentious part of the interview. However, the entirety of the interview memo was made an exhibit and was given to the jury.
Following his conviction the appellant was sentenced to a term of imprisonment of two years. Although the Court of Appeal rejected his appeal against conviction it reduced the sentence to twelve months. Bail was subsequently extended by order of this Court.
Decision of the Court of Appeal
The appellant originally appealed against his conviction on two grounds. For the purposes of this appeal the only relevant issue argued was that the trial judge erred in refusing to discharge the jury “in circumstances where evidence was adduced by the prosecutor which had no probative value and excessively prejudiced the appellant”.
The judgment of the Court of Appeal was delivered on the 13th October, 2016, (see The People at the Suit of the Director of Public Prosecutions v. K.M.  IECA 283). It is apparent from the judgment that the case made on behalf of the Director was that what had occurred did not offend against the right to silence or the privilege against self-incrimination, and that the appellant’s response to the garda questions was not to be compared with a person who actually remains silent, or who consistently says “No comment” or “No comment on the advice of my solicitor”. He had elected not to maintain silence but instead had presented a statement.
In the course of its summary of the Director’s submissions, the judgment attributes to her the contention that, consonant with this, the defence had presented to the jury an accused who showed consistency in his account, provided the jury were prepared to accept it, between (i) the contents of his statement; (ii) his responses to the supplementary questions put to him in interview; and (iii) his testimony in the trial. Having considered the trial transcript it appears that this was an error – no reference was made by defence counsel to the supplementary questions. It may be that prosecution counsel was advancing an argument that this course of action would have been open to the defence, but it is clear that the latter did not share this view.
The Court of Appeal stated that it agreed with the case made by the respondent, saying (at paragraph 25):
“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. The latter was what, in effect, this appellant was saying when confronted with the specifics of the complainant’s statement of complaint. He was not saying nothing or refusing to comment.”
The Court seems also to have agreed with the suggestion (if such it was) that the evidence in fact favoured the accused, saying that:
“It was the prosecutor’s duty, as a ‘Minister...
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