Rock v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Neutral Citation: 1998 WJSC-SC 13991
• Date: 01 January 1998
• Docket Number: [S.C. No. 16 of 1996]
• Court: Supreme Court

ROCK v. IRELAND, AG & DPP

BETWEEN:

PAUL ROCK

Plaintiff/Appellant

and

IRELAND AND THE ATTORNEY GENERAL

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

1998 WJSC-SC 13991

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

BARRINGTON J.

KEANE J.

16/96

THE SUPREME COURT

Synopsis

Constitutional

Legislation; constitutional challenge; personal rights; right to silence; presumption of innocence; proportionality; statute providing for inferences to be drawn in respect of persons arrested in certain circumstances for failing to account; whether infringement of constitutional right to silence; whether necessary part of trial in due course of law; test to be applied in assessing proportionality of restriction; whether restriction on individual rights proportionate to the State's duty; whether unwarranted interference with presumption of innocence; presumption of constitutionality; Arts. 38.1 & 40.3.1 of the Constitution; ss. 18 & 19 Criminal Justice Act, 1984 Held: Legislation not repugnant to Constitution (Supreme Court: Hamilton C.J., O'Flaherty J., Denham J., Barrington J., Keane J. 19/11/1997 Judgment of the Court delivered by Hamilton C.J.)

Rock v. Ireland - [1997] 3 IR 484 - [ 1998] 2 ILRM 35

Citations:

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

EAST DONEGAL CO-OP V AG 1970 IR 317

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

FORGERY ACT 1913 S8

RSC O.84 r22(4)

HEANEY V IRELAND 1994 3 IR 593

CONSTITUTION ART 38.1

OFFENCES AGAINST THE STATE ACT 1939 S52

O'LEARY V AG 1995 1 IR 254

OFFENCES AGAINST THE STATE ACT 1939 PART V

CRIMINAL JUSTICE ACT 1984 S18(4)

CONSTITUTION ART 40

COX V IRELAND 1992 2 IR 503

TUOHY V COURTNEY 1994 3 IR 1

1 19th day of November 1997 by the Chief Justice pursuant to the provisions of Article 34, s. 4, sub-s. 5 of the Constitution of Ireland

2 This is an appeal brought by Paul Rock, (hereinafter called the Appellant), against the judgment of Murphy J. delivered on the 10th day of November 1995, and the order made in pursuance thereof, whereby he dismissed the Appellants claim for:-

3 (a) a declaration that Section 18 of the Criminal Justice Act, 1984is inconsistent with the provisions of Bunreacht na hÉireann and accordingly unconstitutional;

4 (b) a declaration that Section 19 of the Criminal Justice Act, 1984, is inconsistent with the provisions of Bunreacht na hÉireann and accordingly unconstitutional;

5 (c) an order of prohibition and/or an injunction (including interim and interlocutory order) restraining the Notice Party from further prosecuting the proceedings against the Appellant.

Impugned Provisions

6 Section 18 of the Criminal Justice Act, 1984(hereinafter referred to as the Act), provides that:-

7 2 "(1) Where

8 (a) a person is arrested without warrant by a member of the Garda Síochána, and there is -

9 (i) on his person, or

10 (ii) in or on his clothing or footwear, or

11 (iii) otherwise in his possession, or

12 (iv) in any place in which he is at the time of his arrest,

13 any object, substance or mark, or there is any mark on any such object, and the member reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of the offence in respect of which he was arrested, and

14 (b) the member informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark, and

15 (c) the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal.

16 (2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

17 (3) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.

18 (4) Subsection (1) shall not have effect unless the accused was told in ordinary language by the member of the Garda Síochána when making the request mentioned in subsection (l)(b) what the effect of the failure or refusal might be.

19 (5) Nothing in this section shall be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.

20 (6) This section shall not apply in relation to a failure or refusal if the failure or refusal occurred before the commencement of this section."

21 Section 19 of the said Act provides that:-

22 2 "(1) Where -

23 (a) a person arrested without warrant by a member of the Garda Síochána was found by him at a particular place at or about the time the offence in respect of which he was arrested is alleged to have been committed, and

24 (b) the member reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and

25 (c) the member informs the person that he so believes, and requests him to account for such presence, and

26 (d) the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or, subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal.

27 (2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

28 (3) Subsection (1) shall not have effect unless the accused was told in ordinary language by the member of the Garda Síochána when making the request mentioned in subsection (l)(c) what the effect of the failure or refusal might be.

29 (4) Nothing in this section shall be taken to preclude the drawing of any inference from the failure or refusal of a person to account for his presence which could properly be drawn apart from this section.

30 (5) This section shall not apply in relation to a failure or refusal if the failure or refusal occurred before the commencement of this section."

Presumption of Constitutionality

31 The Act having been passed by both Houses of the Oireachtas and signed by the President in accordance with the provisions of the Constitution is entitled to the presumption of constitutionality.

32 As the provisions of the Act and the impugned sections thereof, enjoy the presumption of constitutionality, the onus is on the Appellant to establish clearly that the impugned sections are repugnant to the Constitution.

33 In considering the question whether the impugned sections of the Act are repugnant to the Constitution, the Court must apply the principles of the presumption of constitutionality as laid down by it in East Donegal Co-operative .v. The Attorney General (1970) I.R. 317,which are summarised in the decision of this Court in The Adoption (No. 2) Bill, 1987 (1989) I.R. 656 as follows at page 661 of the report:-

34 2 "(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and

35 (2) That as between two or more reasonable constructions of the terms of the Bill, the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions."

Relevant Provisions of the Constitution

36 The provisions of the Constitution upon which the Appellant relies are:-

"Article 38.1.

37 No person shall be tried on any criminal charge save in due course of law."

38 And

"Article 40.3.1.

39 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."

Background to the Case

40 The Appellant is charged that on the 4th day of May, 1994 at the Burlington Hotel, in the Dublin Metropolitan District he without lawful authority or excuse had in his possession forged banknotes, to wit, 2,000 forged United States 100 dollar banknotes, knowing the same to be forged, contrary to Section 8 of the Forgery Act, 1913.

41 The circumstances in which that charge came to be made are set out in the Affidavit grounding the application to the High Court, that is say, the affidavit of Mr. Patrick McGonagle, the...