Supreme Court: Doctor convicted of indecent assault has conviction quashed

About this case:

• Judgment:
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Delivering the judgment of the five-judge Court, Ms Justice Iseult O’Malley said that it was not possible to discount the real possibility that the jury drew an adverse inference from evidence that the accused refused to answer questions at interview, and that it was clear that he was exercising his right to remain silent at interview by referring to his written statement in response to questions.

Background

The complainant, Ms H alleged that, in December 1989, KM assaulted her indecently during a medical examination.

Ms H complained to the Gardaí in October 2010, and KM was arrested in June 2011. KM brought a prepared statement to the police station, and when asked questions by the interviewing Garda, KM replied “I have nothing to say other than what’s written in my statement” (or some slight variation thereof). KM contended that in so doing he was exercising his right to silence.

These supplementary exchanges were not introduced in evidence in the first trial, which ended in a disagreement. At the second trial KM’s statement was adduced before the jury, and counsel for the prosecution proceeded to lead evidence of the additional questions and responses.

Counsel for KM complained to the judge, saying that he had expected that the evidence given would be confined to the written statement, and that this evidence was inadmissible under the Finnerty rules.

The trial judge refused to discharge the jury, saying: “Well, it is not at all comparable with Finnerty, because what the man says is not that I’ve no comment, I rely entirely on what I said in my statement, which is completely different to Finnerty and would not be a ground for discharging the jury …”

KM was convicted on one count of indecent assault and sentenced to two years imprisonment, which was reduced to twelve months in the Court of Appeal.

Supreme Court

KM was granted leave to appeal to the Supreme Court under Article 34.5.3° of the Constitution on the following issue:

“Where a person has volunteered an exculpatory statement and thereafter responds to questions by referring to the statement and saying that he or she has nothing further to say, should such responses be seen as

(a)an exercise of the right to silence, or

(b)relevant and probative evidence in the trial?”

KM claimed that he was irretrievably prejudiced by the disclosure of the full interview to the jury, and that this was a clear violation of his right to silence contrary to the principles confirmed in DPP v Finnerty 4 I.R. 364, namely:

The DPP argued that on the facts of the case the accused was not exercising his right to silence, and that the contents of the interview were relevant and probative evidence which could assist in assessing the credibility of the statement.

Delivering the judgment of the Court, Justice O’Malley said this contention was not only questionable in relation to the facts of the case but left open a real risk that what occurred in the trial was contrary to the principles established in the authorities.

Justice O’Malley’s interpretation of the transcript was that KM intended and adhered to the course of action of answering questions about himself “that did not involve discussion of the allegation made against him, and then, when the allegation was specifically raised, to state that he would say nothing other than what was in his prepared statement”. This was thereby a refusal to answer questions put to him by the Gardaí about the allegation, and an exercise of the right to silence.

Noting that different judges could interpret interview notes differently, Justice O’Malley said it was unfortunate that Counsel for the prosecution did not adopt normal practice of alerting the defence as to it’s course of action, so that an objection could have been raised at an appropriate time and evidence could have been heard.

By ruling that it was not inadmissible per Finnerty, the trial judge did not explain the basis for admitting it, its relevance, or why it didn’t prejudice KM in the eyes of the jury. Justice O’Malley said that the trial judge should have explained to the jury how it should be treated. In the absence of such guidance, Justice O’Malley said that it was not possible to discount the real possibility that the jury drew an adverse inference, which was impermissible.

Justice O’Malley said she would adopt R. v. Chambers 2 S.C.R. 1293: “It has as well been recognised that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.”

In the circumstances, Justice O’Malley said she would allow the appeal and quash the conviction.