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1. At approximately 4 o’clock on a summer morning in 1998, a car being driven by the applicant was stopped by the gardaí in Letterkenny, County Donegal. A young woman who was a passenger in the car got out of it immediately, walked quickly to the patrol car and spoke to one of the gardaí. She told him she had been raped by the driver. She was distressed, weeping

2. The learned trial judge had, at an earlier point in the charge, referred as follows to that part of the applicant’s evidence:

3. Junior counsel for the applicant, Mr. Grehan, made the following application in respect of these passages in the charge:-

4. Mr. Grehan, in a further submission to the learned trial judge said:-

5. Having heard counsel for the prosecution in reply, the learned trial judge recalled the jury and recharged them in respect of the other matters as to which requisitions had been made. He made no further reference to this matter,

6. As to the other evidence at the trial, it is sufficient to refer to those aspects which had a bearing on whether there was any evidence which the jury might have treated as corroborative of the complainant’s version of events.

7. The complainant was medically examined by Dr. Najma Ali, a registrar in Letterkenny Hospital. She said that the complainant seemed distressed but did not appear to have any external injuries. As to her examination of the genitalia, it can be summarised as indicating that what she found was consistent with forced sexual intercourse, but was also consistent with consensual sexual intercourse. She said that the complainant’s clothes were dishevelled but were not torn, the latter conclusion being borne out by the forensic examination of the gardaí. It should be pointed out that, while Dr. Ali found no sign of bruising, she agreed that it might have taken a day or more after the application of any force for such bruising to appear.

8. There were also blood stains on the underwear and on the seat of the car which, the forensic evidence, indicated would be consistent with either forcible or consensual intercourse.

9. The learned trial judge, in the course of his charge, warned the jury of the danger of convicting the applicant in the absence of corroboration but also told

10. The jury found the applicant guilty in respect of the second count by a unanimous verdict. They were unable to agree in respect of a verdict on the first count. The case having been put back for a number of weeks for the obtaining of the appropriate reports, the applicant was sentenced to a term of 7 years’ imprisonment. The first count was adjourned so as to enable counsel for the prosecution to obtain instructions from the Director of Public Prosecutions as to whether to proceed with that charge again. An application for leave to appeal was refused.

11. An appeal was brought from the refusal by the learned trial judge to grant leave to appeal. While the notice of appeal was not included in the books of

12. Other grounds were also argued in the Court of Criminal Appeal, but were not pursued in this court. The appeal was dismissed in an extemporary judgment of the court given by Lynch J. dealing with the first two grounds of appeal, the learned judge said:-

13. It should be said at this point that the reference in this passage to the trial judge having emphasised the right to silence of the applicant appears to be an oversight, if it was intended as a reference to the applicant’s claimed right to remain silent during the period of his detention in the garda station. There is no reference in the charge of the learned trial judge to that right of the applicant: the learned trial judge did undoubtedly point out to the jury that the applicant was under no obligation to give evidence in his own defence, but that is a different matter.

14. Following the dismissal of the appeal, the applicant applied for a certificate pursuant to s.29 of the Courts of Justice Act 1924 enabling an appeal to be brought to this court. That application was acceded to by the court of Criminal Appeal, the certificate being in the following terms:-

15. The notice of appeal to this court, pursuant to that certificate, in addition to the two grounds set out at p.16 above, contained the following additional grounds: -

16. It is important to emphasise at the outset that the more general constitutional and legal dimensions of what has come to be called “the right of silence” are not at issue in this appeal. That right, to the extent that it exists, can arise in a number of different contexts, only one of which is at issue here. Thus, it is not in dispute that the exercise by an accused person of his right not to give evidence in his own defence cannot lead to any inference adverse to him

17. Nor is the appeal concerned with the possible admissibility in evidence of a statement made in the presence of a defendant accusing him of a crime, upon an occasion which may be expected reasonably to call for some explanation or denial from him. Such a statement, although not evidence against him of the facts stated, may be accepted by him by word or conduct, action or demeanour and it is then the function of the jury which tries the case to determine whether it was accepted by him in whole or in part: (see Archbold on Criminal Pleading, Evidence and Practice, 1999 edition, 15 - 390 ). Nor are we concerned with the different considerations which may arise where the accused denies the charge and the adduction of that evidence, given its extremely limited probative value, may, at least in some circumstances, compromise the fairness of the subsequent trial. For that reason, it has been the law both in England and Ireland since the leading case of R. v. Christie [1914] AC 545 , that a trial judge should in most cases take care to ensure that such evidence is excluded where it has little or no evidential value. In the present case, that issue does not arise since the adduction in evidence of the exculpatory statement made by the applicant to Garda Healy when he was stopped by the gardai was not objected to on his behalf.

18. Nor is this case concerned with the formal evidence routinely given in many cases as to the response by an accused person following his being charged and cautioned. Such evidence is normally led as one of the formal proofs in the prosecution’s case because, it is thought, rightly or wrongly, that evidence must be given of the accused having been charged and it would be unwise to allow the jury to speculate as to what he might have said in response. Except in cases where his response was inculpatory, such evidence is normally innocuous and will almost certainly have long faded from the jury’s minds when they retire to consider their verdict.

19. This case is solely concerned with the claimed right of a person detained under s.4 of the 1984 Act to refuse to answer questions put to him by the gardai during the course of his detention and the corollary of that right i.e. the need to ensure that no inferences adverse to him are drawn at any subsequent trial from the exercise of that right.

20. The history of the law prior to the enactment of the 1984 Act is relevant. Our criminal law, deriving ultimately from the Anglo-American system, historically reflected a tension between two competing principles. The first was the right and duty of the police to investigate crime of every sort in the interests of the community as a whole and the corresponding obligation on citizens to assist them in that task. The second was the right of a suspect at a defined stage in the investigation to refuse to answer any questions and the

21. These principles were eventually enshrined in what became known as the “Judges’ Rules” set out in R. v. Voisin [1918] 1 KB 531 at 538. Those rules were intended solely as guidance for police officers in the conduct of investigation and were not rules of law. However, where admissions, alleged to have been made by an accused person, were made or obtained in circumstances which were in contravention of the rules, the trial judge had a judicial discretion to admit or not to admit the admissions in question, provided that he was satisfied that they were voluntary. If they were not voluntary, he was required to exclude them. (On this topic generally, see the decisions of this court in McCarrick v. Leavy [1964] IR 225 and The People (Attorney General) v.Cummins [1972] IR 312.) In the context of this case, the relevant rules are as follows:-

22. It is clear that the same considerations apply to persons detained under s.4 of the 1984 Act.

23. The 1984 Act, accordingly, 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. That right would, of course, be significantly eroded if at the subsequent trial of the person concerned the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardai an account similar to that subsequently given by him in

24. It must also be borne in mind that it is a usual practice for solicitors to advise their clients while they are in custody not to answer any questions put to them by the gardaí, if they consider that it would not be in their interests to do so. However, if the jury could be invited to draw inferences from the failure to reply to such questions, the result would be that persons in custody would have to be advised by solicitors that, notwithstanding the terms of the caution, it might be inimical to their client’s interests not to make a full statement to the gardaí, thereby eroding further the right of silence recognised at common law.

25. Had the Oireachtas intended to abridge the right of silence in this manner, it would have expressly so legislated. Sections 18 and 19 of the 1984 Act enable the court of trial to draw inferences from the failure or refusal of a person arrested by the gardaí to account for the presence of certain objects in his possession or his having been found at a particular place. Such inferences may afford corroboration of any evidence, but the person may not be convicted of an offence solely on the basis of such inferences. This leads to the inevitable conclusion that no such general abridgement of the right of silence was intended to be effected where a person declined to answer questions put to him by the gardai during the course of such a detention.

26. It is also noteworthy that such an alteration in the law was effected, in England, in circumstances of acute controversy, by s.34 of the Criminal Justice and Public Order Act 1994, which provides inter alia that, where a person, on being questioned under caution by an investigating police officer, fails to mention any fact relied on in his defence in the proceedings, the court or jury:-

27. That in turn led to an amendment in that Act of the traditional form of caution which, as set out in Code C, para. 10.4, is now as follows:-

28. The absence of any such provisions in the 1984 Act speaks for itself. In the case of the Offences Against the State Act 1939, the right of silence was modified in so far as s.52 of that Act made a failure to account for one’s movements, when requested to do so under that Act, a punishable offence. In Heaney v. Ireland, [1994] 3 IR 593 , Costello J, as he then was, concluded that the right of silence modified by this provision was a

29. It follows that the right of suspects in custody to remain silent, recognised by the common law, is also a constitutional right and the provisions of the 1984 Act must be construed accordingly. Absent any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion follows inevitably that the right is left unaffected by the 1984 Act save in cases coming within s.s. 18 and 19, and must be upheld by the courts.

30. Mr. Grehan, who argued this case on behalf of the applicant with conspicuous ability, accepted that he would have had no complaint if the prosecution had simply informed the court that the applicant had been detained under the 1984 Act but that nothing of probative value had emerged from the detention. He urged, however, that that was not what had happened in this case: on the contrary, evidence was adduced by the prosecution to the jury as to what transpired during the detention, after the complainant had been cross-examined, with the avowed intention of cross-examining the applicant as to his failure to give such an account during the course of his detention when he came to give evidence, a course of action strenuously objected to on behalf of the defence but permitted by the learned trial judge.

31. Again, while Mr. Grehan accepted that he had not objected to the cross-examination when it eventually took place, he also pointed out that at that stage the trial judge had already made his ruling on the matter and that, in any event, the damage was done so far as the defence was concerned once the cross-examination on this topic was under way. While also accepting that it was open to him at that stage to apply to the trial judge to discharge the jury, he submitted that this was a dubious course for the defence to adopt in a case where the jury had been presented with two diametrically opposed versions of what had happened on that evening between the complainant and the applicant

32. The court is satisfied that Mr. Grehan’s submissions are well founded. The defence should not have been put at any disadvantage on the hearing of the appeal by the decision, reasonable in all the circumstances, not to object to the cross-examination or apply for the discharge of the jury.

33. 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:-

34. The application of the first and second of these principles to the present case must result in the appeal being allowed. Unfortunately, the difficulties were compounded by the passage in the trial judge’s charge which was by implication critical of the appellant for having made statements as to what transpired during the course of his detention which had not been put to the gardaí and which, the trial judge invited the jury to infer, had not been transmitted to his legal advisers.

35. It must be said, in fairness to the trial judge, that, once the misapprehension he was under when making those observations was made clear to him, he might have been prepared to rectify the matter when the jury was recalled. The defence, however, adopted the position, as they were entitled to do, that the matter was beyond rectification and sought the discharge of the jury, a course opposed by the prosecution which the trial judge did not adopt. The jury, accordingly, in deliberating on the guilt or innocence of the accused, might well have been under the impression that they were not only entitled to draw adverse inferences from the failure of the defendant to give his version of events in detail in the garda station but that they were also entitled to draw such

36. Any inferences which the jury might have drawn to that effect would have been in direct violation of the applicant’s constitutionally guaranteed right to remain silent, and might well have been a factor in the jury’s assessment of the credibility of the applicant’s account of what happened between him and the complainant on that night. The verdict of the jury cannot, accordingly, in those circumstances be regarded as safe or satisfactory.

37. The appeal will be allowed and in place of the order of the Court of Criminal Appeal there will be an order reversing the conviction and directing that the applicant be retried in respect of count number 2.