DPP v Finnerty

• Jurisdiction: Ireland
• Judge: Keane, J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 130
• Court: Supreme Court
• Docket Number: [S.C. No. 331 of 1998]
• Date: 01 January 2000

DPP v. FINNERTY

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

Respondent

AND

JOSEPH FINNERTY

Applicant/Appellant

[1999] IESC 130

Hamilton, C.J.

Denham, J.

Barrington, J.

Keane, J.

Murphy, J.

Appeal No. 331/98

THE SUPREME COURT

Synopsis

Evidence

Evidence; right to silence; Judges" Rules; applicant refused to answer questions while in garda custody; applicant was cross-examined about refusal to answer questions; applicant convicted on one count of rape in Central Criminal Court; leave to appeal refused by trial judge, refusal of leave to appeal appealed to Court of Criminal Appeal; appeal dismissed; appeal to Supreme Court pursuant to certificate granted by Court of Criminal Appeal under s.29, Courts of Justice Act, 1924; whether accused has right to refuse to answer questions put to him by gardaí while detained in garda custody pursuant to s.4, Criminal Justice Act, 1984; whether, despite absence of express provision in the Act of 1984, a jury can be invited to draw adverse inferences from applicant's failure to reply to garda questions; whether right to remain silent is a constitutional right; whether cross-examination of applicant as to his refusal during the course of his detention to answer questions is permissible; whether trial judge in his charge to the jury should refrain from making reference to the fact that defendant refused to answer questions in the course of his detention; whether verdict of jury in trial of the action is safe and satisfactory.

Held: Appeal allowed; conviction reversed; retrial ordered.

D.P.P. v. Finnerty Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Murphy J. 17/06/1999 - [1999] 4 IR 364 - [2000] 1 ILRM 191

The Criminal Justice Act 1984 did not abolish the right of an accused to refuse to answer questions put to him while in police custody but this right would be significantly eroded if at the subsequent trial of the person concerned the jury could be invited to draw inferences adverse to that accused from his refusal to answer those questions. The Supreme Court so held in allowing the appeal and further saying that a trial judge in charging a jury should in general make no reference to a refusal by the accused to answer questions while detained.

Citations:

COURTS OF JUSTICE ACT 1924 S29

ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE (1999) PARA 15–390

R V CHRISTIE 1914 AC 545

CRIMINAL JUSTICE ACT 1984 S4

R V VOISIN 1918 1 KB 531

MCCARRICK V LEAVY 1964 IR 225

AG, PEOPLE V CUMMINS 1972 IR 312

DUNNE V CLINTON 1930 IR 366

DPP, PEOPLE V O'LOUGHLIN 1979 IR 85

OFFENCES AGAINST THE STATE ACTS 1939 – 1972

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987

CRIMINAL JUSTICE ACT 1984 S5(1)

DPP, PEOPLE V QUILLIGAN (NO 3) 1993 2 IR 305

DPP, PEOPLE V QUILLIGAN 1986 IR 495

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S34

OFFENCES AGAINST THE STATE ACT 1939 S52

HEANEY V IRELAND 1994 3 IR 593

CONSTITUTION ART 38.1

ROCK V IRELAND 1998 2 ILRM 35

NATIONAL IRISH BANK LTD (UNDER INVESTIGATION) & COMPANIES ACT 1990, IN RE 1999 1 ILRM 321

1 JUDGMENT of the court delivered the 17th day of June,1999by Keane, J. [NEM DISS]

Introduction

2 At approximately 4 o'clock on a summer morning in 1998, a car being driven by the applicant was stopped by the gardaí in Letterkenny, County Donegal. A young woman who was a passenger in the car got out of it immediately, walked quickly to the patrol car and spoke and one of the gardaí. She told him she had been raped by the driver. She was distressed, weepingand shivering. The garda (Garda John Healy) told the applicant then and there what she had said and cautioned him in the usual terms. The applicant (whose reply was noted in writing by Garda Healy) said:-

"I didn't rape her. I met this girl at a disco. She came out willingly. We went down the road, pulled in, kissed and such. We left then and came back in."

3 The applicant was arrested and brought to the garda station in Letterkenny. He was there detained under the provisions of the Criminal Justice Act 1984(hereafter "the 1984 Act") and released at 4 pm on the 1st June, the period of detention having been duly extended. During that time, after having been properly cautioned and advised of his rights (including his right to consult a solicitor, of which he availed), the applicant was interviewed by the gardaí but made no further statement of any sort.

4 The applicant was subsequently returned for trial in the Central Criminal Court on two counts of rape. (The reason two counts were laid will become apparent at a later point.) Having been arraigned and having pleaded not guilty to both counts, the applicant was tried before Carney J and a jury in the Central Criminal Court.

5 The complainant, who was a student at a local regional technical college at the time, gave evidence of having gone out for a celebration with some of the other students on the 30th May, after they had finished their examinations on that day. She met a man in the disco to which they went with whom she danced and to whom she talked for most of the evening. She said that he offered to drive her home and, that, since he seemed nice and she thought she could trust him, she agreed. When they came to this car, he said that he had to wait for a friend: the friend, who was another man wearing a form of jumper with a hood which, the complainant said, he pulled over his head, sat in the back seat behind her as they drove off. She said that she became very frightened because the passenger in the back seat began making physical advanced to he and that her fear even greater when the driver, instead of taking her home, drove her to a lonely spot on the Derry road. There, she said, the two men got out and after a brief conversation, the passenger with the hood got back into the car and said that he would drive the complainant home. The other man, she said, just walked off.

6 The complainant said that the man with the hood, despite her protests and threats to jump out of the car, brought her to another where the drove the car into the driveway of a house and round to the back. Her evidence went on: (Transcript, Book 1, Q.231):-

"Q. The car drove in. Are you saying it stopped?

A. Yes, it stopped and before I knew it, the car just stopped and it happened so quickly that he was on top of me and he just reefed off my clothes."

7 The complainant went on to give a description of having been brutally raped by the driver. At one state, she pleaded to be allowed to get out of the car to relieve herself; he evetually allowed her to but stood beside her. Following that incident, she said she was raped again in the same manner. (It was this sequence of events as narrated by the complainant which resulted in the laying of two separate counts.)

8 The complainant, who said that she was a virgin at the time of the alleged rape, identified the applicant as the perpetrator.

9 The complainant was then cross-examined on behalf of the applicant and it was put to her that her account in every material particular was false. She was told that the applicant would give evidence that they had in fact met in a pub where the complainant had gone with her friends before they went to the disco. The complainant, in her direct evidence had said that she and her friends had begun the evening in the pub, but she denied that she had met the applicant there or, indeed, at any time until after she had left the disco. She was told thatthe applicant would say that she told him she was going on to the disco, that they met there and had drinks together and that at one stage he sat on her knee. She was told that he would say that they had a discussion as to what might happen later on, that she explained that they could not go to her place because her mother was sharing a room with her in a guesthouse and that ultimately they decided to go for a drive in his car. It was further put to her that he would say that she made some physical advances to him while they were driving and that ultimately he stopped the car and that they had intercourse with her consent. All of this was denied by the complainant.

10 When the complainant had finished her evidence, prosecuting counsel told the learned trial judge, in the absence of the jury, that he now proposed to adduce evidence as to the fact that the applicant, during the period of his detention in the garda station under the 1984 Act, had made no statement of any sort. This was objected to by counsel on behalf of the applicant on the ground that the only issue in the case was as to whether the sexual intercourse which had admittedly taken place on the evening in question between the complainant and the applicant was with or without her consent. Counsel for the prosecution, however, submitted that, since it had been made clear on behalf of the applicant that he would be giving evidence which would contradict the account of events given by the complainant, the fact that he had given no such account when being interviewed in the garda station would be relevant whenthe jury came to assess his credibility. The learned trial judge, having heard the submissions on behalf of he prosecution and the applicant, ruled that the evidence was admissible.

11 The applicant gave evidence which was broadly similar to the account of events put on his behalf by counsel to the complainant. The only material addition in his evidence, which did not appear to have been put to the complainant, was that she expressed anxiety when the car was about to be stopped by the gardaí, because her mother would be angry with her for having gone out drinking with the otherstudents.

12 The applicant was cross-examined by prosecuting counsel as to what transpired in the garda station as follows (Transcript , Vol. 4, Q.310 et seq):-

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