COURT OF CRIMINAL APPEAL
Fennelly J.
Kelly J.
Peart J.
139/2003
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
JAMES BOWES Applicant
JUDGMENT of the Court delivered on the 22nd day of November, 2004 by FENNELLY J.
The Applicant was convicted on 8th July 2003 in the Circuit Criminal Court, before His Honour Judge O’Donnell and a jury, on two counts of possession on 3rd April 2000 at James’s Street, Dublin of a controlled drug, namely diamorphine or heroin. The first count was of possession for sale or supply. Since the market value was in excess of £10,000, the offence was covered by section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the same Act of 1999) of the Misuse of Drugs Act, 1977. The Applicant was sentenced to serve a term of twelve years imprisonment on the first count, the final two years being suspended. He has applied to this Court on a number of grounds for liberty to appeal against his conviction.
The Facts
On 3rd April 2000, members of the Garda National Drug Unit, using six unmarked Garda cars, carried out what, at the trial, was called a “hit” against a grey Honda registration number 92 D 7570. They were acting on what was described as “confidential information received by Detective Sergeant Walsh.”
In respect of the details and nature of the alleged “confidential information,” evidence was led at the hearing, firstly, that one garda witness, Detective Sergeant Doran, was aware that Detective Sergeant Walsh “was aware of confidential information in relation to importation and distribution of substantial quantities of diamorphine” and, secondly, when the latter came to give evidence that the “confidential information” related to “the accused James Bowes, the man in the dock.”
The time of the police operation was 3 pm; the traffic was heavy; the weather was sunny; the car was being driven by the Applicant, who was alone in the car.
The operation was apparently led by Detective Garda (later Detective Sergeant) Patricia McGarrity. She abandoned her car and approached the Honda and produced her Garda identification card to the driver, the Applicant. She told him that she and the other people there were gardaí. She informed him that she had grounds for believing that he had controlled drugs in his possession and that she was stopping and searching him and his vehicle under section 23 of the Misuse of Drugs Acts 1977-1984. She cautioned him in the usual terms. The gardaí blocked the car. Detective Garda Doran said that the Applicant was accelerating hard on the car, though it was not moving. Detective Garda McGarrity and Detective Garda Collis took the Applicant out of the car. They restrained him by placing him on the ground face down.
While the caution was being administered, the car was being searched. Detective Garda Carey called to Detective Garda McGarrity: “Patricia, there’s drugs in the boot, heroin in the boot.” She then informed the Applicant that he was no longer being detained for the purpose of search but that she was now arresting him for an offence under section 15 of the Misuse of Drugs Act. Having administered the usual legal caution, Detective Garda McGarrity explained to the Applicant the reason for his arrest. She asked him if there were any more drugs in the car. He replied: “only the bags of gear in the boot.” She asked if there were any needles or syringes in the car, to which he replied: “no.” Detective Garda Doran said he heard the exchanges between Detective Garda McGarrity and the Applicant, including the answers to the two questions. He said that he noted these in his notebook, which he produced at the trial. It was common case that the entire operation at James’s Street took a matter of minutes. The Applicant was not, at that point, shown what the gardaí had found in the boot or asked to comment.
The Applicant, both through cross-examination by his counsel and in his own evidence, denied that he was cautioned or that he was asked or answered the two questions mentioned at the end of the preceding paragraph. His case, at all times, was that he was put on the ground with his clothes over his head and that he could not hear what was going on.
Detective Garda PJ Carey he said that he found two plastic sacks side by side in the boot of the car. Each contained three brown plastic wrapped packages containing powder. On analysis, five of the six sacks were found to contain heroin. The total quantity was almost five kilos. The concentration was between 56% and 63%. Also in the boot were weighing scales packed in a cardboard box. This is material to a fingerprint issue mentioned later. In the front of the car, there was found a green jacket in which was found a receipt dated 2nd April 2000 for the purchase of the weighing scales. The Detective Garda said that, having informed Detective Garda McGarrity of what was in it, he jumped into the car and drove it out of the area. He took it to Blanchardstown Garda Station.
The Applicant, now under arrest, was also taken to Blanchardstown Garda Station, where the garda investigation continued. His detention was authorised pursuant to section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. That authorisation was for an initial period of six hours from the time of arrest (section 2(2)(a)), which was duly extended for eighteen hours (section 2(2)(b)) and further extended for twenty four hours (section 2(2)(c)). The legality of the arrest or further detention was not contested. In addition, authority was given pursuant to section 6 of the Criminal Justice Act, 1984 for the Applicant to be photographed and fingerprinted.
Detective Garda Doran said that, as the Applicant was being placed in a cell in Blanchardstown Garda Station, having cautioned him, he read over to him the notes from his notebook of what he had said, in answer to questions from Detective Garda McGarrity in James’s Street and that the Applicant agreed that the notes were correct but refused to sign. All of this was confirmed in the evidence of Detective Garda Collis, but denied by the applicant.
The Applicant was questioned in Blanchardstown from 3rd April to the evening of 4th April. The admissibility of his answers to garda questioning was contested on voire dire, though not on the basis that his answers were not voluntary, but rather that they were prejudicial rather than probative and tended to prejudice, in particular, his reliance on his constitutional right to silence.
The learned trial judge made a number of rulings on admissibility. It is best, in the first instance, to describe the evidence which was admitted and, therefore, heard by the jury. The following is the evidence from the interviews that was admitted:
1. Q. Do you understand the caution?A. Yea
Q. Do you understand the reason for your arrest?
A. No.
Q. The reason you were arrested is that you were stopped today on James St and inside the boot of your car was a quantity of suspected heroin that’s the reason for your arrest?
A. If you say so I thought it was old washing.
Q. But you didn’t call it old washing at the scene of your arrest?
A. I’ve nothing to say.
Q. Well then you must know what we are talking about?
A. All I am saying is that I put my washing in the car boot this morning.
2. Q. I put it to you that you have a case to answer after a large quantity of heroin was found in your car boot?A. Listen I know youse are only doing your job and well done you got a result today but as far as I am concerned it’s not over until the fat lady signs (sic).
3. Q. I must point out to you that certain inferences can be drawn by your failure to answer some questions in relation to the amount of alleged heroin found in your car today?A. Nothing to say. [Note: the question but not the answer was given in evidence; see below.]
4. [Following fingerprinting and photographing, the Applicant was shown the exhibits an event which was accompanied by the following remarks.]Q. I am now showing you item 1 a brown packages (sic) that was in P.J.C. 2 which is two brown packages in a black refuse sack. This was found in your car today. What do you say about these (D/Gda Carey holds up and shows James Bowes a brown sellotaped wrapped bale in an evidence bag and also an evidence bag labelled P.J.C. 2 containing 2 bales wrapped in brown tape in a black type refuse sack).
A. I’ve nothing to say until I see my solicitor.
5. In addition, there was an uncontested and signed statement in which the Applicant explained the circumstances in which he claimed to be in possession of the Honda motor car. There was also fingerprint evidence. Fingerprints of the Applicant were, as already indicated, authorised. These were taken while he was in garda custody. On comparison with two prints found on the weighing scales found in the boot of the car, one of these matched the print of the ring finger of the Applicant’s left hand.
Grounds of Appeal
The fourteen grounds of appeal are largely repetitious and overlapping. They amount, in effect, to the following.
1. A number of grounds relate to the alleged infringement of the constitutional right to silence of the Applicant with regard to either his admissions or his silence. In particular, it is said that this occurred when counsel for the prosecution, in opening the case to the jury, said that the Applicant had made no comment when shown the materials found in the boot of the car and referred to the fact that the Applicant had made no statement to the gardaí until he had been in custody for twenty four hours. Furthermore, the learned trial judge should not have admitted evidence of the warning given to the Applicant that inferences might be drawn from his failure to answer questions, when articles were show to him. Finally, it was argued that the learned trial judge should not have admitted into evidence the statements allegedly made by the Applicant in the “question and answer session,” as these had no probative value and invited the jury to speculate as to the contents of the remaining hours of interview. Overall, it was claimed, in reliance on the decision of the Supreme Court in DPP v Finnerty [1999] 4 I.R. 364, that there had been a violation of the Applicant’s right to remain silent.2. It was objected that the details of the evidence regarding the alleged “confidential information” should not have given; that the judge should have discharged the jury, once it had been given; and that the learned trial judge was wrong to conclude that it was possible for the Applicant to have a fair trial. Reliance was placed on the decision of this Court in DPP v McGartland (Unreported 20th January 2003).3. Objection was taken to the admissibility of the fingerprint evidence on the basis that the prints taken from the Applicant in garda custody should have been destroyed pursuant to the provisions of section 8 of the Criminal Justice Act, 1984. For the purposes of that provision, it was argued that the Applicant had not been charged within six months. That was because, proceedings having been commenced within that period, they were struck out for failure to serve the book of evidence and recommenced outside the period. If the prints ought to have been destroyed, they ought not to have been available for the purposes of giving evidence about them.4. It was also objected that the learned trial judge had erred in the exercise of his discretion in admitting a late notice of additional evidence during the trial. The context of this argument needs to be explained. The Applicant had claimed in his written statement to the gardaí that he had no involvement with the Honda motor car prior to the 2nd April 2000 and that he was driving it only at the request of another person in order to have it repaired. Detective Garda Barber claimed in a statement of additional evidence served only after the start of the trial that he had seen the Applicant driving the car in question in February 2000 and that he had caused a record of this fact to placed on the garda computer record system, PULSE. The objection was twofold. Firstly, that the Applicant could not fairly be expected to recall where he was on a date three and a half years prior to the trial, especially when this evidence had always available to the prosecution. Secondly, it was prejudicial, because it showed that the Applicant was a person so well known to the gardaí that it was considered appropriate to take particular note that he was driving a particular car. The state explained that there was evidence on the book of evidence in the form of records relating to the car in question found in the flat of the Applicant, who was thus aware that an attempt would be made to prove his link with the car in question. Unfortunately, the relevant garda witness suffered a bereavement of a close family member and was unavailable to give evidence. Hence, the resort to the alternative of Detective Garda Barber’s evidence to discredit the claim that the Applicant had had no prior involvement with that car.5. Objection was taken that the gardaí could not explain the whereabouts of the Honda car, which was not, therefore, available for inspection on behalf of the Applicant. This, it was said, rendered the trial unsafe and unsatisfactory.6. A number of other grounds were advance concerning the manner in which exhibits were identified in evidence and in relation to the charge of the learned trial judge. All these were specific to the circumstances of the particular trial. In the view the court takes regarding the appeal as a whole, it is not necessary to consider these grounds.Consideration of the Grounds of Appeal
The court has decided to consider the foregoing grounds of appeal in the following order.
The “Confidential Information”
The Court is satisfied that the evidence regarding the “confidential information” should not have been given. It was not probative of any element of the case against the Applicant. Certainly, the fact that gardaí from the National Drugs Unit, in significant numbers and in plain clothes particularly targeted a car driven by the Applicant was almost certain to rouse the suspicions of the jury that the gardaí were acting on information. However, it was unnecessary to lead any evidence at all on the subject of “confidential information.”
It was argued at the trial, though not on this application, that this evidence cast light on the state of mind of the gardaí in question, but that was never a relevant fact to be proved. In any event, the actual evidence given to the effect that the information related to the importation and distribution of diamorphine and that it related to the accused person was tantamount to giving hearsay evidence that he was involved in those activities.
This case is much stronger than McGartland, where the impugned evidence was that the garda officer knew the home of the accused, “because I had known him for some time and I was familiar with the address...” The judgment of the Court, delivered by Keane C.J. said that this evidence could only have been damaging to the appellant, because it “could lead the jury to the inference that this was a person who was known to the police, a familiar enough phrase in everyday parlance, not known in any social context, the jury were entitled to assume, but known as someone who, at the very least, was suspected of dealing in drugs, and known to the police previously, apart altogether from this particular matter that led to the raid on the house….”
Accordingly, on that ground alone, the Court is satisfied that the application must succeed. It is obvious, however, that this is a case for a retrial, when all the evidence, as well as evidence not led on the previous occasion, may be given again. Therefore, it remains necessary to consider those grounds of appeal which may be relevant to the retrial.
The Fingerprint Evidence
The next matter to be considered is that concerning the fingerprint evidence. Section 8(1) of the Criminal Justice Act, 1984 ordains that fingerprints taken pursuant to the provisions of the Act “be destroyed as this section directs.” The material provisions for the purposes of the present case are:
“2) Where proceedings for an offence………… are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.
(3) Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction shall be carried out on the acquittal, discharge or discontinuance.”
The argument, at the Court of trial, as on this application, concerned the meaning of the words, “discharge or discontinuance.” In the written submissions of the Applicant, it was argued that the proceedings were “discontinued” when struck out in the District Court. The Applicant disputed reliance by the prosecution on the use of the word “discontinue” in civil proceedings, since proceedings must be considered to have been discontinued whether the prosecution withdraws the charges or the District Court strikes them out for some failure of the prosecution. Mr Durnin, Senior Counsel, for the Applicant focussed his submissions at the hearing on the first word, namely “discharge” rather then the second of these words. He relied especially on the decision of the Supreme Court Zambra v. District Judge McNulty and the Director of Public Prosecutions [2002] 2 IR 351, as demonstrating that the first set of proceedings had ended and led to a “discharge” of the Applicant.
In the view of this court, the case of Zambra does not assist in any respect in the interpretation of section 8 of the 1984 Act. That case was concerned only with whether a “step” had been taken within the meaning of section 5 of the Criminal Procedure Act, 1976, when the District Court extended time for the service of the book of evidence.
The Court must, nonetheless, ascribe a meaning to section 8(2) of the 1984 Act. Clearly, there was no acquittal when the charges were struck out. Equally, the Court is of the view that discontinuance, by analogy with the well-known use of that word on the civil side of the court refers to a voluntary act of the prosecuting authority to bring the proceedings to an end, as by formally withdrawing the charges or entering a nolle prosequi. It is less easy to discern the meaning of the word “discharge.” Section 8(5) of the Criminal Procedure Act, 1967 provided for the decision a District Judge might make at the end of a preliminary examination. Where there was no sufficient evidence to justify sending the accused forward for trial on the offences charged and no other offence was disclosed, the subsection provided:
“If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.”
The entire preliminary examination procedure has now been abolished and replaced by the procedure under Part III of the Criminal Justice Act, 1999. In that Act, it appears that, whenever the District Court reaches the stage when the accused is not to be sent forward for trial (as when the prosecution does not consent or the specified documents are not served), it is required, under several provisions of the new Part 1A inserted into the 1967 Act to “strike out the proceedings against the accused in relation to that offence.” When the District Court strikes out proceedings, they are brought to an end. In the case of Kennelly v Cronin [2002] 4 IR 292, proceedings had been struck out in the District Court, by reason of the failure of the prosecution to serve the book of evidence within the time allowed. In the view of McGuinness J: “This was indeed a due disposal of the charges against him according to law.”
In the absence of any statutory definition, the word “discharged” should be given its ordinary and natural meaning. The effect of a decision of a court to strike out proceedings based on a charge is that the proceedings themselves are at an end. The wording of section 8(5) of the Act of 1967, referred to above, is relevant, since that section was in force at the time of the enactment of the 1984 Act. This suggests that the effect of a District Court order striking out proceedings when the book of evidence is not served in time is to discharge the accused. Since there has not been a disposal on the merits, this does not prevent the prosecution from recommencing the proceedings. However, the accused must be charged anew. As appears from the decision in Kennelly v Cronin, any bail bonds are discharged. The only natural conclusion is, therefore, that the accused has been discharged in relation to that charge.
It follows that the fingerprints taken from the Applicant in garda custody should have been destroyed, that they should not have been available to be proved in evidence and should not, therefore, have been admitted. None of this affects the possibility of presenting fingerprint evidence at the retrial, provided new prints for purposes of comparison can be lawfully obtained. That is not, however, before the Court.
The alleged infringement of the Right to Silence
This ground of complaint comprises several elements as outlined at paragraph 1 above. Heavy reliance was placed on the judgment of Keane J, as he then was, speaking for a unanimous Supreme Court in Finnerty. It is important to recall the factual context of Finnerty. There, as here, the accused had been detained pursuant to the Criminal Justice Act, 1984. There the charge was one of rape. The accused had availed of his right to remain silent and had declined to answer any garda questions. At the trial both through cross-examination by his counsel and in his own evidence, he put forward a defence of consensual sex not previously mentioned by him. Prosecuting counsel, with the approval of the trial judge, cross-examined him with a view to undermining his credibility on his failure to mention this defence when questioned by the gardaí. This was upheld in this Court. On further appeal pursuant to section 29 of the Criminal Justice Act, 1924, the Supreme Court allowed the appeal. The most relevant passage in the judgment of Keane J is:
“The principles applicable in a case such as the present where a defendant while detained under the provisions of the 1984 Act has refused to answer questions put to him can be stated as follows:-
(1) Where nothing of probative value has emerged as a result of such a detention but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained but that nothing of probative value emerged.
(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant during the course of his detention to answer any questions be permitted.
(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.”
In the present case, there was evidence other than the silence of the Applicant. It is set out at paragraphs 1, 2 and 3 of the summary of the interviews set out above. It is best, in the first instance, to consider the objection to this evidence. It must be noted, at the outset, that it was not contended that the arrest or subsequent detention of the Applicant was unlawful. Evidence was given that the usual caution was administered. It was not contended that the statements were involuntary. Rather the Applicant maintained that he never gave the answers attributed to him. He refused to sign the garda record of the interviews. In these circumstances, there could normally be no objection to the admissibility of the answers given by a suspect in response to garda questioning. The whole purpose of the 1984 Act was to grant to the gardai to an express legal power to detain persons suspected of crime so as to facilitate its investigation. The following further passage from Finnerty explains the way in which the Act departed from the previous practice:
“It was against this background that the 1984 Act was enacted. The policy of the legislation is clear: to end the dubious practice of bringing people to the station for the purpose of “assisting the gardaí with their enquiries”, or in purported reliance on the legislation directed primarily at subversive crime, and to substitute therefor an express statutory regime under which the gardaí would have the right to detain a person in custody for a specified period of six hours which could be extended for a further six hours for the purpose of investigating specified crimes. That included the right to question him concerning the crime, but the significant abridgement of the suspected person’s rights at common law was balanced by the provision of express safeguards.”
Keane J went on to insist that “the 1984 Act … … did not modify in any way the right of a person whom the gardaí suspect of having committed a crime to refuse to answer questions put to him by the gardaí and his entitlement under the Judges’ Rules to be reminded of that right before any questioning begins.”
The basis of the objection on behalf of the Applicant is that the answers were at best ambiguous, did not amounting to clear admissions and thus had no inherent probative value. Furthermore, and principally, it was urged that they were isolated answers given during a lengthy period of questioning, all of which would have led the jury to speculate as to what else took place during the interview. In the view of the court these submissions are not well founded. It is undoubtedly the fact that the Applicant made no express admission. However, his answers suggesting that the packages in the car boot might or did contain washing were matters that the jury were entitled to hear in the circumstances of the case. They purported to be explanations offered regarding what the gardai had found in the boot of the car. In giving those answers, the Applicant was not exercising his right to silence. The case is different from Finnerty, where the accused resolutely remained silent. Insofar as the Applicant in this case followed that course, evidence of his refusal to answer was not admitted. It was inevitable that the jury would be aware that he was detained for some time. However, in respect of other periods of detention, the evidence given followed the Finnerty admonition or formula that nothing of probative value emerged. It should be said, of course, that the cautions of Keane J (as he then was) in Finnerty must be respected at any retrial.
Turning to the admission of evidence regarding the warning prior to showing the Applicant the packages and other material found in the car, it is necessary to refer, in the first instance, to the relevant statutory provision. Section 7 of the Criminal Justice (Drug Trafficking) Act, 1996 allows inferences to be drawn from silence in proceedings for drug trafficking offences. If the person is questioned by a member of the Garda Síochána and has “failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention when so questioned …” subsection 1 of the section provides that:
“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 or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure 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 is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure.”
However, section 7(2) provides:“Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of such failure might be.”
The operation of this procedure at the trial was, to say the least, confusing. The intention of the gardaí appears to have been to show to the Applicant the items found in the car boot, having given him the statutory warning, and to give in evidence his reaction, including his silence. Detective Garda Collis gave evidence that, during the garda interview, the Applicant was informed as follows:
“I must point out to you that certain inferences can be drawn by your failure to answer some questions in relation to the amount of Heroin found in your car today.”
The learned trial judge, when asked to rule on the admissibility of this warning in evidence, expressed himself as having difficulties with the context of the caution. He referred to the fact that, by the usual caution, the accused had been told that he did not have to say anything, but that he was then told that “certain inferences could be drawn.” He thought that the caution should have been more specific. He suggested that the words could have been:
“... notwithstanding that the caution I am now telling you that under the Drug Trafficking Acts, section 7, that if you fail to answer or offer an explanation it is open to the court to draw to the attention of the jury or draw inferences ………………”
Nonetheless, when he came to give his rulings on admissibility, he said:
“I have already dealt with the issue that was identified to me today is that it is perfectly in order to say that these matters were shown to him without any response.”
He also ruled admissible a repetition in different words of the garda warning:
“You are aware that certain inferences can be drawn by the court in relation to your failure to mention any fact which you may rely on in your defence. Did you discuss this with your solicitor”
The Applicant is recorded as replying “Yeah.” This was not, however, given in evidence.
At the point when this evidence was led by prosecuting counsel and given in the presence of the jury, the learned trial judge intervened and ruled that that could not “be put to him” (Detective Garda Collis).
To add to the mystery, the transcript records counsel for the Applicant as saying that it had been agreed that “the question, that the particular caution would be given [in evidence] and that evidence of Garda Carey producing the exhibits would be given………” Nonetheless, slightly later, he is recorded as submitting that the warning did “not comply with the Act.” This became the true basis of objection at the appeal.
Having intervened after the presentation of the evidence, the learned trial judge directed the jury that they were to ignore it. However, he declined the defence application that he should discharge the jury.
The Applicant’s three complaints are interrelated. Counsel should not have told the jury about this evidence in opening; the prosecution should not have led it; once it had been heard by the jury, the learned trial judge should have discharged the jury. They all depend on whether the evidence was admissible.
The object of the usual caution is to inform the suspect that he is not obliged to answer any questions. This was long since required by the Judges’ Rules and became, over the years, a standard requirement. In Finnerty, it was seen as underpinning the constitutional right to silence. Thus, a suspect may be lawfully detained in custody for the purpose of the investigation of a crime. The gardai may question him; he is not, however, bound to answer. Furthermore, no comment can be made upon his failure to respond to questioning, no matter how bleak and incriminating the circumstances.
However, the legislature, in the terms of section 7, has qualified that right, by permitting a court of trial to draw inferences from a failure to mention a particular fact in circumstances where it would have been reasonable to expect him to do so. The two provisions are not inconsistent, as the learned trial judge seems to have thought. The suspect remains, in principle, free to remain silent. However, his exercise of that right may, subject to compliance with the section, itself become part of evidence.
In the present case, the critical question at the trial became whether the warning given by the gardai complied with the requirements of section 7(2) of the 1996 Act. The Applicant, under the first ground of appeal, as summarised above, submits that the jury should have been discharged by reason of the reference of counsel in opening to evidence of the warning and the giving in evidence of the warning that an inference might be drawn from failure to mention a fact relevant to his defence.
The terms of the section must first be considered. The permitted inference relates to “any fact relied on in [the] defence…… being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention….” The section does not relate to silence generally. In particular, it does not relate to the fact that the accused, in response to garda questioning, exercised his right to remain silent and declined to answer any questions. There must be an identifiable fact relied on by the defence at the trial which the Applicant “could reasonably have been expected to mention when…questioned.” The prosecution case was never presented in those terms. Counsel commented, in opening, that the Applicant, when shown the various items in garda custody, “had no comment to make….” That was clearly inappropriate. The prosecution did not yet know what fact or facts would be relied on by the defence. The section did not justify any prosecution reliance on failure by an accused person to comment.
The learned trial judge, as well as counsel on both sides, appears to have proceeded on the footing that the section permitted general silence to be admitted in evidence, once a warning had been given. It does not.
The Applicant gave evidence of a number of matters in his defence. It is not appropriate for this court to express any view as to whether his failure to mention any of those matters brought the section into play. It does not arise on this appeal.
It suffices to say that the comment of counsel in opening was inappropriate, since the prosecution did not yet know what fact or facts would be relied on by the defence. The warning required by the section must draw the attention of the suspect to the danger of not mentioning any fact upon which he will or is likely to rely in his defence. The first version of the warning given, relating to “failure to answer some questions,” clearly does not satisfy that requirement. The second formulation mentioned “failure to mention any fact which you may rely on in your defence” and is closer to what is needed. However, it was given at a very late stage in the questioning and certainly long after the items of evidence were shown to the Applicant. In any event, for the reason already given, it does not relate to any fact of the sort covered by the section.
For these reasons, the court is satisfied that this ground of appeal succeeds insofar as reliance was placed on the failure of the Applicant to comment on the pieces of evidence produced to him.
Other Grounds of Appeal
In these circumstances, it is unnecessary to rule on the other grounds of appeal.
Any argument as to whether the learned trial judge wrongly exercised his discretion by permitting the late introduction of additional evidence will have to be viewed in the light of the circumstances prevailing at the retrial. If the prosecution is in possession of evidence tending to associate the Applicant with the Honda motor car prior to April 2000, they may not need to rely on the evidence of Detective Garda Barber. It will not necessarily be so prejudicial that it ought not to be given in evidence. Care should be taken to ensure that it does not excite such suspicions. However, it will be a matter for the trial judge to rule, in the light of all the circumstance prevailing.
Questions of the presentation of exhibits or their numbering will be matters for the trial court on the retrial. Finally, it will be a matter for the court of trial to decide whether the Applicant has been subjected to a real risk of an unfair trial by reason of the unavailability of the Honda motor car for examination. No greater evidence was placed before this court than was before the Supreme Court when it decided not to prohibit the Applicant’s trial on this ground. Hardiman J, speaking for the Supreme Court in the case of Bowes v Director of Public Prosecution [2003] 2 I.R. 25 said:
“In Mr. Bowes’ case, the prosecution does not turn on the car itself, nor on the manner of its driving, but on the proposition that drugs were found in its boot immediately after the defendant had been driving it. There is no dispute, in these proceedings that the applicant was in fact in the car: his solicitor’s last fax of the 16th November, 2001 refers to “.... the car in which our client was travelling at the time of his arrest”.
It suffices to quote part only of the concluding part of the judgment of Hardiman J to dispose of this aspect of the Applicant’s case:
“In Mr. Bowes case, by contrast, the notion of seeking a technical examination of the vehicle was a very belated one indeed. The nature of the case against him was immediately apparent: there was a quantity of heroin in the boot of a car which he was driving. He had the benefit of legal advice from the day of his arrest but no question of technical examination arose until virtually the eve of the trial. This is not surprising having regard to what seems to me to be the negligible possibility such examination would offer of rebutting the case against him. It is alleged that there is an absence of technical evidence regarding the layout of the boot and the car, but this is easily obtainable from an examination of any vehicle of the same make and model”.
This Court has no material which might lead it to a different conclusion. This ground of appeal is rejected. It is open to the court of trial to consider any new evidence on this issue which is presented.
For the reasons given in this judgment, the Court will treat the application for leave to appeal as the notice of appeal. It will allow the appeal and order a retrial.
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