Supreme Court: Burglar’s conviction quashed due to improper use of adverse inferences

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The man was arrested on suspicion of having been involved in the unlawful discharge of a firearm, and was subsequently charged with the offence of burglary contrary to section 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Delivering the judgment of the five-judge Court, Chief Justice Susan Denham found that the inferences could not be drawn in relation to the offence for which the man was not subsequently charged.

Background

The offence arose out of an incident in Blanchardstown in June 2009. Witnesses at the scene stated that they had seen Mr Alan Wilson and his co-accused at the scene.

Mr Wilson was arrested pursuant to s.30 of the Offences against the State Act 1939, as amended, on suspicion of having been involved in the unlawful discharge of a firearm.

While Mr Wilson was being interviewed in custody, members of An Garda Síochána invoked the “adverse inferences” provisions of s. 19 of the Criminal Justice Act 1984 (as inserted by section 29 of the Criminal Justice Act 2007).

Mr Wilson was subsequently charged with the offence of burglary contrary to section 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001.

Adverse inferences

In this case, the proceedings were against Mr Wilson for an arrestable offence, thus the gateway to s. 19 was opened.

Mr Wilson was informed that he was arrested for the offence of unlawful discharge of a firearm.

A member of An Garda Síochána requested Mr Wilson to account for his presence at a named place where Mr Wilson was present when a firearm was discharged; having reasonable belief that Mr Wilson’s presence at the place in question was to participate in and carry out the unlawful discharge of a firearm.

Section 19 was formally invoked – and the member of An Garda Síochána explained that s. 19 meant that if Mr Wilson did not answer the questions concerning his presence at named places, and he, the Garda, reasonably believed that Mr Wilson’s presence in those places was to participate in and carry out the unlawful discharge of a firearm, that then a judge could take the failure or refusal into account.

The inference caution requirements of s.19 were appropriately invoked in relation to the offence of the unlawful discharge of a firearm – however, Mr Wilson was subsequently charged with the offence of burglary contrary to s.12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001.

It is clear, therefore, that the offence in respect of which the inference caution was deployed was not the same offence as that in respect of which proceedings were brought against Mr Wilson.

Having regard to the clear wording of the section it follows that it is not possible to draw an inference in respect of the offence as charged when the inference caution machinery of s.19 was invoked in respect of a different offence.

Section 19 speaks of the inference caution being invoked by a Garda requesting a person to account for his or her presence at a particular place at a particular time – Justice Denham explained that this could be done either under subsection (a) when the accused is being questioned in relation to “the offence” or, under subsection (b), when the accused is either charged with “the offence” or informed that he or she might be prosecuted for it.

Justice Denham stated that DPP v Liam Bolger (No. 1) IECCA 6 and DPP v Liam Bolger IECCA 1 were not of assistance in this case.

In this case, Mr Wilson was arrested on suspicion of having been involved in the unlawful discharge of a firearm, and questioned in relation to that offence. However, he was charged with the offence of burglary involving the carrying out of an assault.

There was no evidence that the gun was produced or discharged during the assault.

Conclusion

Justice Denham believed if Mr Wilson and his co-accused had been tried separately, the evidence relating to the discharge of the firearm would likely have been inadmissible as against Mr Wilson. Any other approach would require further legislation.

Consequently, s. 19 of the 1984 Act could not be applied, and inferences could not be drawn or applied, in his trial for the offence of burglary.

Section 19 could not be utilised in a trial for an offence other than the offence in respect of which the inference caution was expressly invoked. Any other approach would require further legislation.

Allowing the appeal and quashing the conviction, Justice Denham stated that whether or not there would be a re-trial was a matter for the DPP.