The People (At the Suit of the DPP) v Roy Carroll
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 13 October 2021 |
| Neutral Citation | [2021] IECA 261 |
| Docket Number | Record No.: 81/2020 |
[2021] IECA 261
Edwards J.
McCarthy J.
Donnelly J.
Record No.: 81/2020
THE COURT OF APPEAL
Conviction – Possession of cocaine for sale or supply – Inferences – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in admitting into evidence the interviews of the appellant which dealt with the inferences pursuant to ss. 18, 19 and 19A of the Criminal Justice Act 1984
Facts: The appellant appealed to the Court of Appeal against his conviction on a single count of possession of cocaine for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977 (as amended) on the 25th February, 2020 in Cork Circuit Criminal Court. The four grounds of appeal put forward by the appellant were as follows: (i) the trial judge erred in law in admitting into evidence the interviews of the appellant which dealt with the inferences pursuant to ss. 18, 19 and 19A of the Criminal Justice Act 1984 (as amended); (ii) the trial judge erred in law in his charge to the jury having failed to explain the nature of counts one and two on the indictment, which were alternatives of each other, in circumstances where the jury found the appellant guilty of both the s. 3 and s. 15 of the 1977 Act offences, which was a perverse verdict; (iii) the trial judge erred in law in recharging the jury having reached a perverse verdict of guilty in respect of both the s. 3 and s. 15 of the 1977 Act offences and thereby allowing them to amend the issue paper to record a verdict of “not guilty” in respect of the s. 3 offence; and (iv) the trial judge’s charge was inadequate in all the circumstances.
Held by the Court that the trial was unsatisfactory in so far as the jury were not directed on the issue of the inference-drawing provisions of the 1984 Act upon which the prosecution had relied. The Court held that, in those circumstances, it would be unsafe to permit the verdict to stand.
The Court held that the appeal would be allowed.
Appeal allowed.
JUDGMENT of the Court delivered by Ms. Justice Donnelly on the 13 th day of October, 2021
. This is an appeal brought by the appellant against his conviction on a single count of possession of cocaine for sale or supply contrary to s. 15 of the Misuse of Drugs Act, 1977 (as amended) (hereinafter, “the Act of 1977”). The appellant was convicted on the 25 th February, 2020 in Cork Circuit Criminal Court.
. Having heard this appeal on the 5 th October, 2021, the Court indicated that the appeal was to be allowed on the ground that the trial judge had not charged the jury in relation to the inference-drawing provisions of the Criminal Justice Act, 1984 (as amended) (hereinafter, “the Act of 1984”) in circumstances where the contents of an interview in which the appellant had exercised his right to silence were admitted in evidence. We indicated that reasons were to be given later and this judgment constitutes the reasons for our decision.
. The appellant was admitted to the bail he had been on prior to the trial with the condition that he appear before the Court on the 15 th October, 2021 when the issue of whether the Court would remit this matter for a retrial would be heard.
. The offence of which the appellant was convicted was alleged to have occurred on the 10 th January, 2018. The appellant was the passenger in a car that was waiting to pass through a toll booth on the Dublin to Cork motorway. This car was stopped by the gardaí as a result of information available to them. The appellant and the driver were asked to vacate the vehicle and a search of the vehicle and of the appellant was carried out. The appellant provided his correct name and address to the gardaí but shortly thereafter, the driver called out “run” to the appellant and the appellant fled from the gardaí, up an embankment and into a field. The gardaí were unable to catch the appellant. Both gardaí gave evidence that they saw the appellant drop a package while he was fleeing across the field. It was the prosecution's case that this white package retrieved by the gardaí contained 124.6g of cocaine worth €8,722.
. The appellant was arrested on a subsequent date and interviewed by the gardaí. His final interview was admitted into evidence, despite objection. This interview purported to be one carried out in accordance with the provisions of s. 18, s. 19 and s. 19A of the Act of 1984 which permits a jury to draw inferences from an accused person's failure to answer certain questions and/or to give an explanation as to certain matters. During the course of this interview, the appellant did not respond to any of the questions that were asked of him.
. The appellant gave evidence in his defence. He accepted he was in the car at the time. He denied having had the package in his possession at any time. He accepted he had run when he heard the driver shout “run”. He said he had panicked. In cross-examination, the appellant said the reason he had not given this explanation to the gardaí while being interviewed was because he had been advised of his right to remain silent.
. The appellant was also tried before the jury on the offence of possession of a controlled drug contrary to s. 3 of the Act of 1977. The jury initially returned a verdict on this count also. On direction of the trial judge, the issue paper was amended to reflect “no verdict” on this offence. The prosecution had opened and run the case on the basis that s. 3 was an alternative count to the s. 15 count.
There are four grounds of appeal put forward by the appellant and they are as follows:-
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i. The trial judge erred in law in admitting into evidence the interviews of the appellant which dealt with the inferences pursuant to sections 18, 19 and 19A of the Act of 1984;
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ii. The trial judge erred in law in his charge to the jury having failed to explain the nature of counts one and two on the indictment, which were alternatives of each other, in circumstances where the jury found the appellant guilty of both the s. 3 and s. 15 of the Act of 1977 offences, which is a perverse verdict;
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iii. The trial judge erred in law in recharging the jury having reached a perverse verdict of guilty in respect of both the s. 3 and s. 15 of the Act of 1977 offences and thereby allowing them to amend the issue paper to record a verdict of “not guilty” in respect of the s. 3 offence; and
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iv. The trial judge's charge was inadequate in all the circumstances.
. At the hearing of the appeal the two issues canvassed were the direction of the trial judge with regard to the issue of “no verdict” and the admissibility of the interview particularly where the trial judge did not give the jury any explanation as to the purpose for which this interview had been admitted.
. The manner in which the fourth interview came to be admitted was somewhat unusual. The prosecution began to lead Sergeant Cahalane through his evidence on the matter of interviewing the appellant without any initial objection by counsel for the prosecution. Objection was then made and following an initial objection concerning certain redactions, counsel went on in the absence of the jury to object to any of this interview being admitted. This objection was primarily based upon a claim that because he denied having the cocaine in his possession that no adverse inference should be drawn from any failure to account. Counsel submitted: “[a]nd other than that the only inference could be that he ran away, which he accepts and he gave his name and address. They knew him. It wasn't a false name. It wasn't anything like that”. Counsel went on to say that in those circumstances, to admit the interviews would be more prejudicial than probative.
. The defence's application was refused and the interviews were admitted into evidence by the device of Sergeant Cahalane agreeing with counsel for the prosecution who read through the interview. A typed copy of this interview was then given to the jury. It is interesting to note that in this interview the appellant was told that the provisions had been fully explained to him and he was asked if he wanted the interviewers “to re-explain those provisions”. As there was no answer from the appellant, the interview proceeded. It seems that the meaning of the provisions had been read to him and explained to him in an earlier interview and he was given time to consult with a solicitor. That interview was not put before the jury.
. The prosecution did not merely present the interviews to the jury but they relied upon his silence in interview in cross examination of the appellant as follows:
“Q. … let's concern ourselves with [the fourth] interview that I read out to the jury, there was an opportunity for you to say ‘I ran because I panicked’, but you didn't do it. You made no comment in that interview as to why you ran. A perfectly...
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