DPP v Wilson
| Jurisdiction | Ireland |
| Judge | Mr. Justice William M. McKechnie,Denham C.J. |
| Judgment Date | 13 July 2017 |
| Neutral Citation | [2017] IESC 53 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 15 of 2016],[Appeal No. 15/2016] [Court of Appeal Record Nos. 107/2013 and 114/2013] |
| Date | 13 July 2017 |
[2017] IESC 53
[Appeal No. 15/2016]
[Court of Appeal Record Nos. 107/2013 and 114/2013]
THE SUPREME COURT
Point of general public importance – Inference provisions – Criminal Justice Act 1984 s. 19 – Appellant seeking to raise a point of general public importance as to the proper interpretation of s. 19 of the Criminal Justice Act 1984 – Whether s. 19 may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked
Facts: The appellant, Mr Wilson, was arrested on suspicion of the unlawful possession of a firearm, arising out of an incident which occurred on the 3rd June, 2009, at 56 Dromheath Drive, Blanchardstown, Dublin 15. During the course of his detention, the interviewing gardaí, by reference to that offence, invoked s. 19 of the Criminal Justice Act 1984, 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 s. 12(1)(b) and 12(3) of the Criminal Justice (Theft and Fraud) Offences Act 2001. He was convicted and was serving a six-year term for that offence when he raised a point of general public importance as to the proper interpretation of s. 19 of the 1984 Act. Leave to appeal to the Supreme Court 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.
Held by the Court that it would answer the certified question by saying that the inference provisions can only be relied upon at trial where the offence charged is the same as that in relation to which the accused was questioned when the section was invoked.
The Court held that it would allow the appeal and quash the appellant's conviction.
Appeal allowed.
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.
The Director of Public Prosecutions, the respondent, is referred to as 'the respondent'.
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.
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.
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.
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'.
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.
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.
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.
The trial judge ruled in favour of the respondent.
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.
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."
45. 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.
46. 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 giving rise to the drawing of adverse inferences was admissible, this in a situation where the accused had been arrested for offences of possession of firearms, but charged and convicted with the offence of murder. Accordingly this ground of appeal must also fail.
47. In summary then, all of the grounds advanced by both appellants seeking to have their convictions set aside are rejected. The Court therefore will turn to the question of sentence in the case of the first named appellant, Mr. Alan Wilson.'
On the appellant's application for leave to appeal, the Court granted leave to appeal on the issue of whether s. 19 of the 1984 Act may be utilised in a trial for an offence other than the offence about which an accused was questioned when the section was invoked
Written and oral submissions were made on behalf of the appellant.
In essence the appellant submitted that he was not being questioned in relation to the offence of burglary but rather a firearms incident with which he was never charged, and that it was therefore not open to the respondent to use s.19 of the 1984 Act in relation to proceedings for an offence other than that for which he was arrested.
It was submitted that there is no ambiguity in the terms of s. 19 of the 1984 Act and that it is clear that it requires that the section may be used only in a trial for the offence for which an accused was questioned so that the section would have to be amended if it were to provide for its use for any other related offence.
The appellant submitted that the decisions The People (DPP) v. Bolger [2013] IECCA 6 and The People (DPP) v. Bolger [2014] IECCA 1, are of no assistance as they deal with a separate issue.
On behalf of the appellant it was submitted:-
(i) Section 19 of the 1984 Act allows admission of evidence of an accused's failure to answer questions only in circumstances where he is tried for an offence about which he was questioned.
(ii) When the adverse inference provisions were invoked the...
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