DPP v YU

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 28 July 2005
• Neutral Citation: [2005] IECCA 95
• Court: Court of Criminal Appeal
• Date: 28 July 2005

[2005] IECCA 95

COURT OF CRIMINAL APPEAL

McCracken J

O'Neill J

White J

70/03

DPP v YU

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

Yu Jie

Applicant

CRIMINAL JUSTICE ACT 1984 S4

LAVERY v MEMBER IN CHARGE CARRICKMACROSS GARDA STATION 1999 2 IR 390

CRIMINNAL JUSTICE ACT 1984 S8(3)

CRIMINAL LAW

TRIAL

Right to silence - Access to solicitor - Interpreter -Whether right to have solicitor present during questioning - Whether applicant tricked or overborne during questioning - Whether interpreter biased - Lavery v Member-in-Charge Carrickmacross Garda Station [1999] 2 IR 390 followed - Criminal Justice Act 1984 (No 22), ss 4 and 8 - Leave to appeal refused (DPP) v Jie

Facts: the applicant was convicted of murder by a jury in the Central Criminal Court. The applicant applied for leave to appeal that conviction on the basis, inter alia, that the interview conducted by the gardai was unfair in as much as it continued after he indicated his unwillingness to answer further questions and that he subsequently discovered that the interpreter was a Chinese police officer. He also contended that section 8 of the Criminal Justice Act 1984 applied to evidence taken by the gardai and should be destroyed as he had been initially charged but, as the wrong procedures had been followed, was released and recharged.

Held by the Court of Criminal Appeal in refusing the applicant leave to appeal that the primary importance of video recordings of interrogations was that a court could subsequently rule upon the fairness of the questioning and the demeanour of the person being questioned in a manner which was more reliable than reading a transcript of what took place and what the video showed was that there was no impropriety in relation to the interpreter or the conduct of the interview. That as the original charges against the applicant were proceeded with, he had not been discharged in relation to them and therefore section 8 of the Criminal Justice Act 1984 did not apply and the gardai were under no obligation to destroy fingerprint or other evidence which they had taken.

Reporter: P.C.

1 Judgment of the Court delivered by Mr Justice McCracken on the 28th day of July 2005

Background

2 The Applicant was convicted before Abbot J and a jury of two counts of murder in a trial lasting some fifty-eight days, and was given the mandatory sentence of life imprisonment. The evidence against him was largely circumstantial. It was established in evidence that the two deceased died of strangulation, probably on 12 ^th March 2001, and it appears that in the early hours of 14 ^th March 2001 an attempt was made to set fire to the apartment in Blackhall Square in which they were killed in an attempt to destroy any evidence which might have existed. The apartment block was covered by closed-circuit television cameras and from the videos in those cameras it was established that both deceased were alive in the apartment block on the afternoon of 12 ^th March 2001. The video from the camera also showed the Applicant in the apartment block on 12 ^th, 13 ^th and 14^th March 2001. There was also some fingerprint evidence which showed that the Applicant had been in the apartment at some stage, but as he was a friend of the two deceased and had admittedly been in their apartment on a number of occasions, this evidence had little probative value.

3 The Applicant was interviewed by the gardaí initially as a witness on 14 ^th March 2001 and made a lengthy statement to the gardaí over a period of several days which was admitted in evidence.

4 On 22 ^nd March 2001 the Applicant was arrested under the provisions of s.4 of the Criminal Justice Act 1984, and while in detention he was interviewed by Detective Sergeant Grennan and Detective Garda Carroll, which interview was electronically recorded. The interview was conducted through the medium of an interpreter, who was in fact a Chinese police officer seconded to Interpol, called Mr Jim. There was a lengthy voire dire in the course of the trial lasting some twelve days in relation to the admissibility in evidence of the memorandum of the interview of 22 ^nd March 2001 and the recording of that interview. The statement was admitted in evidence by the learned trial Judge. In his appeal to this Court the Applicant has raised a number of distinct issues, which the Court proposes to deal with individually.

The Right to Silence

5 In the course of his interview on 22 ^nd March 2001 the Applicant on several occasions indicated that he did not want to answer any more questions. Notwithstanding this, the gardaí continued to question the Applicant, and in fact he continued to answer the questions, although on several occasions saying that he did not want any further questions. It should be noted that the answers which he did give were exculpatory in intent. The Applicant contends that, in continuing to question him, the gardaí breached his right to silence and acted unfairly and put him under undue pressure.

6 It is conceded by the Applicant that he was informed by the gardaí of his right to silence, and was also advised of this right by his solicitor. The interview was recorded electronically, most of it on video tape as well as in audio form. The learned trial Judge, in admitting the statement, placed considerable emphasis on the fact that he had seen the video recording and heard the audio recording and was quite satisfied that at all times the Applicant was answering the questions voluntarily, and that he was not in any way intimidated or overborne by the nature of the questioning.

7 A person may be held in custody and interviewed by the gardaí for the purpose of investigating a crime. The law protects any such person from self-incrimination by providing that there is a right to silence, and a person under questioning is not bound to answer any question, subject to a very few exceptions which are...