Killian Flood BL

The defendant had argued that the failure by the gardaí to question him about the alleged offences deprived him of the opportunity to answer or rebut the charges and would have forced him to testify at trial, setting his right to silence at nought. However, the court said that the defendant could have put forward his version of events at any time, but chose not to do so.

Background

The defendant, referred to as JD, was allegedly seen driving a vehicle in Edgeworthstown, Co Longford, by gardaí. The gardaí knew that the defendant did not have a driving licence and pursued him. In the chase, the gardaí saw several incidences of dangerous driving. Although JD escaped from the scene, he was arrested a few days later and charged with five counts of dangerous driving, driving without a licence and driving without insurance. The accused made no reply to the caution when he was charged.

However, after the file had been passed to the Director for Public Prosecutions, the defendant was charged with a further count of endangerment, which was a charge triable on indictment. He was charged before the District Court and again did not make any reply to the caution.

At trial, counsel for JD made a preliminary application to the judge to withdraw the case from the jury and direct a not guilty verdict on all counts. Counsel claimed that the failure by the gardaí to question JD when he was in custody deprived him of his right to give his version of events. Further, it was claimed that the failure to question the defendant meant that he would have to give evidence at trial in order to put his version of events to the jury, which violated his right against self-incrimination.

The judge agreed with the defendant’s submissions and duly withdrew the endangerment charge from the jury and remitted the case to the District Court to prosecute the summary offences. In response, the DPP brought an appeal pursuant to section 34 of the Criminal Procedure Act 1967 (as amended) on a point of law, namely whether the trial judge was correct to withdraw the charge from the jury.

Court of Appeal

The DPP submitted to the Court of Appeal that the defendant was attempting to litigate the issues in the abstract. There was no indication of any event which the defendant wished to put forward in his defence and was prevented from doing. The DPP emphasised that the defendant could have responded when he was charged but chose not to do so.

On Friday, the Court of Appeal overturned the judge’s ruling. The judgment, delivered by Mr Justice George Birmingham, president, said that it was open to the defendant to submit his account of events when he was charged or at any other stage in the proceedings and that he could have applied at the trial to admit that account into evidence. It was also possible for the defendant to provide his account via testimony and cross-examination. As such, there was nothing unfair about the fact that the Gardaí did not question him about the offences prior to trial.

The court said that it did not agree with the approach taken by the trial judge. The court held that the preliminary application by counsel for the defendant was “unorthodox and not the appropriate one”. The court determined that the application should not have been made by way of “pre-emptive strike” before any evidence was heard.

The trial judge’s explanation for the not guilty verdict was “flawed”, the court said. The trial judge had said that most defendants are arrested and questioned by Gardaí for indictable offences and that a defendant’s answers could be used at trial to form part of their defence. As such, the trial judge reasoned that a failure to question the defendant would require an accused person to take the stand if they wanted to give their account of the incident. However, the Court of Appeal said that there was “no entitlement to be detained and questioned, and no entitlement to put forward a version of events which would be immune from challenge or interrogation”.

Conclusion

The court determined that the trial judge was wrong to withdraw the endangerment charge from the jury and to return a verdict of “not-guilty” in the case.