Court of Appeal: A statement made to a solicitor is not generally admissible in evidence

About this case:

• Citation:
  [2024] IECA 75
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

Delivering judgment for the Court of Appeal, Ms Justice Isobel Kennedy explained that “the reason inculpatory statements are admissible is due to the fact that it is presumed that a person would not make a statement against interest unless that statement were true. To state the obvious, the same cannot be said for wholly exculpatory statements and so, as such that category of statement falls foul of the rule against hearsay.”

Background

On April 2020, the respondent was arrested and interviewed by Gardaí in relation to an incident which occurred at a dwelling. He received legal advice before and during his detention, and at interview outlined elements of his background to Gardaí but chose not to comment on the alleged incident.

The respondent’s trial for aggravated burglary, threat to kill, threat to damage property, production of a knife and endangerment began on 4 November 2022. At lunchtime on that day, the respondent made a partially exculpatory statement to his solicitor which was then furnished to the prosecution by his defence counsel, relying on the Supreme Court judgment of People (DPP) v JD [2022] IESC 39.

The Circuit Court

In the course of the trial, an issue arose concerning the admissibility of the unsworn statement. The defence contended inter alia that the respondent’s opportunity to present his case was limited in light of his being a non-national with no previous convictions and with little knowledge of criminal procedure, and who was advised not to comment at interview, but that this could be remedied by admitting his statement into evidence.

In particular, the defence highlighted its concern that the respondent had answered ‘yes’ and ‘no’ respectively when he was asked twice if he understood the reason for his arrest, and the interviewing Garda had made no attempt to explore this inconsistency.

The prosecution argued that an exculpatory statement is inadmissible for offending the rule against hearsay and that no issue of fairness arose.

The trial judge found that whilst there was no right to have an exculpatory statement admitted into evidence, it could be admitted if fairness required it, provided that the jury were given the context in which it was made. The trial judge ruled the statement admissible in the circumstances.

The Director of Public Prosecutions (DPP) referred a question of law to the Court of Appeal pursuant to s.34 of the Criminal Procedure Act 1967 (as amended) – “Was the Learned Trial Judge correct in law in admitting into evidence the statement of the defendant made to his solicitor on November 4th 2022?”

The Court of Appeal

Ms Justice Kennedy noted the DPP’s position that the respondent’s out of court statement was inadmissible hearsay and that the part of JD relied upon by the respondent was obiter, nonetheless conceding that a statement could be admitted if fairness required it in an appropriate case.

Emphasising that hearsay evidence denies the opposing party of the opportunity to cross-examine the author of the statement to test its reliability, the judge considered that exculpatory statements didn’t fall within the exceptions to the rule and having considered McCormack v Judge of the Circuit Court [2008] 1 ILRM 49 and People (AG) v Crosbie (1961) 1 Frewen 231, the Court of Appeal determined that the statement was inadmissible on the rules of evidence.

Turning to consider JD and People (DPP) v Gormley and White [2014] 2 IR 591, Ms Justice Kennedy observed that whilst basic fairness is required in pretrial procedures and investigations, the assessment of whether or not a pretrial procedure has actually impacted the fairness of a trial contrary to Article 38 of the Constitution is a matter for the trial judge to decide on a case by case basis, and even if there is unfairness or a breach of constitutional rights involved a trial might still be fair.

Recognising that as stated in JD, the accused’s right to know the nature of the allegation against him is important, the court remarked that “It is for the gardaí however, to determine how an investigation proceeds, and what questions should be put to a suspect.”

The Court of Appeal did not see JD as authority for the proposition that a statement made to one’s solicitor is admissible as evidence of the truth of its contents, as in line with the Supreme Court at para. 92 of that judgment, if such a right existed it would radically alter the purpose of the statutory procedures for alibi notices. The court also pointed out that JD concerned a memorandum of interview as opposed to a statement made to a solicitor.

Ms Justice Kennedy emphasised that “It remains the position however, that whether a memorandum of interview made at a late stage to a garda is admissible or not is a matter for the trial judge…A person may make a statement in a garda station on arrest, as in the present case, or if he/she declines to do so or is dissatisfied with what he or she said or feels the version does not properly reflect the reality of the situation, then the option is always open to give evidence. This is not a breach of the right to silence.”

The judge continued, “While a response by an accused on an accusation being first put to him or her may be admissible as evidence of consistency should that accused give evidence, this is dependent on an immediate response to the allegation. A statement prepared with legal advice may be furnished to the gardaí, but such a statement is generally deemed inadmissible.”

Conclusion

The Court of Appeal concluded that a statement made to a solicitor is not generally admissible, that fairness did not require the respondent’s statement to be admitted and that the statement was wholly exculpatory and thus was inadmissible on that basis alone.

Accordingly, the Court of Appeal answered the DPP’s question in the negative.

Director of Public Prosecutions v. R.M. [2024] IECA 75