DPP v Cummins

• Jurisdiction: Ireland
• Judge: GRIFFIN J.
• Judgment Date: 20 December 1983
• Neutral Citation: 1984 WJSC-CCA 291
• Docket Number: Record No 25/81
• Court: Court of Criminal Appeal
• Date: 20 December 1983

1984 WJSC-CCA 291

COURT OF CRIMINAL APPEAL

MR. JUSTICE GRIFFIN

MR. JUSTICE GANNON

MR. JUSTICE KEANE

Record No 25/81

D.P.P. v. CUMMINS

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)

v.

LAURENCE CUMMINS

Subject Headings:

EVIDENCE: unsworn statement

1 JUDGMENT OF THE COURT delivered on the 20th day of December1983by GRIFFIN J.

2 The appellant, Laurence Cummins, was tried and convicted before the Central Criminal Court on two charges of robbery with violence and possession of a fire-arm and ammunition with intent to endanger life. At his trial, when the case for the prosecution was closed, counsel for the appellant informed the learned trial Judge, Finlay P., that his client would be making an unsworn statement. The appellant then entered the witness box, and was not sworn. The following then appears in thetranscript:-

"MR. LAURENCE CUMMINS, in the WITNESS BOX, EXAMINED BY MR.McENTEE

3 1. Mr. Cummins, did you participate in the robbery with which you have been charged? - No.

4 2. Did you make the statements to the Guards which you are alleged to have said (sic) that youparticipated in this robbery with Mr. McCormack? - No, I neverdid."

5 This was the entire of the "unsworn statement" of theappellant.

6 In the course of his charge to the jury, the learned trial Judgestated:-

"Now, in relation to the proof by the prosecution, it can only be on the evidence you have heard in the witness box in this case and the prosecution cannot prove anything merely by the statement of Counsel or anything else. It is only on the evidence that you have heard that you can consider this case and that applies, of course, ladies and gentlemen also in relation to the unsworn statement that was made by the accused person this morning, Mr. Cummins. There is no obligation of any description on an accused to give evidence. An accused is entitled to give sworn evidence and if he gives it, it becomes part of the evidence in the case but if he gives sworn evidence as every other witness, he can be examined and cross-examined but an accused also has a right which was exercised by Mr. Cummins this morning, to make a statement unsworn and when he does that, no one can ask him any questions. That is what Mr. Cummins did this morning and the position of that in the case is exactly identical as a matter of law, to the submissions made by Mr. McEntee on behalf of the accused. You have regard to what he said. Youlisten to the point or points that are made but it does not form part of the evidence in the case and therefore in this case, you are left in the situation that you look at the case as being all the evidence that was called by witnesses taking the oath and giving evidence and being examined and cross-examined by the exhibits which they produced and proved and that is the evidence in the case. It is on that, at the end of the day, you ask yourself the question, has the prosecution proved to my satisfaction beyond a reasonable doubt that the accused isguilty."

7 When the jury retired, Mr. McEntee submitted that this passage did not correctly state the law, since it did not attach a sufficiently weighty status to the unsworn statement of the appellant, and he asked that the jury should be redirected on this matter. The learned trial Judge, in refusing this application, said that he was satisfied that the direction he had already given to the jury was adequate and that if he recalled the jury he would have to underline the difference between an unsworn statement and evidence on oath which, he thought, might highlight the matter in a way that would be prejudicial to the accused.

8 At the conclusion of the trial counsel for the appellant appliedto the learned trial Judge for leave to appeal to this Court on a number of grounds including one submitted by counsel in the following terms:- "The charge to the jury in relation to the unsworn statement made by Mr. Cummins was unduly unfavourable to him and unduly restrictive of the jury's function in regard thereto."

9 The learned trial Judge refused leave to appeal on all grounds save on that ground quoted, in relation to which matter it was observed both by the learned trial Judge and by counsel that "we have no modern Irish decision on that". On the certificate of the learned"trial Judge that this is a case fit for appeal upon that...