Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Yu Jie

Neutral Citation: [2005] IECCA 137


Court of Criminal Appeal Record Number: 70/03

Date of Delivery: 25/11/2005

Court: Court of Criminal Appeal

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“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.”

1 The first question raised is where an accused person who is under interrogation by the gardaí and has been advised as to his right of silence, and who asserts such right of silence, should the gardaí under those circumstances cease to question him any further?

In the United States in the case of Miranda v Arizona 384 U.S. 436 it has been held that if an individual indicates prior to or during questioning that he wishes to remain silent, the interrogation must cease. No authority in the Courts of this State or of any part of the United Kingdom, or indeed of the European Court of Human Rights has been put forward to support this proposition.

In Lavery v Member in Charge Carrickmacross Garda Station [1999] 2 IR 390 the Supreme Court have already decided that the right of interrogation exists. O’Flaherty J said at page 395:-

“However, the gardaí must be allowed to exercise their powers of interrogation as they think right, provided they act reasonably. Counsel for the State submitted to the High Court Judge that in effect what Mr MacGuill was seeking was that the gardaí should give him regular updates and running accounts of the progress of their investigations and this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.”

In any event, if the Applicant’s contention was correct, it would render nugatory the provisions of s.4 of the Criminal Justice Act 1984 which permits the detention of a suspect in circumstances such as those obtaining in the present case for the proper investigation of an offence. Clearly the purpose for which he may be detained is to allow him to be interrogated and questioned, and this Court is quite satisfied that the rights of such person is protected by the advice as to the right of silence, and it is always open to a person arrested under s.4 to exercise such right, as the Applicant did in the present case. This Court is quite satisfied that the point raised had already been decided by the Supreme Court and does not come within s.29.

2 The Applicant also seeks to raise a question in relation to the use of interpreters by the gardaí when questioning an accused person. It is suggested that the accused’s solicitor and an interpreter of his own choosing should be present under those circumstances. This Court is quite satisfied, firstly that that situation is covered by the decision already quoted in the Lavery case, and secondly that the issue raised is purely a question of fact to be determined by the trial Judge in the first instance, possibly in a voir dire hearing, and ultimately to be determined by the jury. In the present case the jury was made well aware of the allegations and it was a matter for them to determine whether the interrogation of the Applicant and any statement made by him was in any way prejudiced due to possible errors by the interpreter. The Court is quite satisfied that no question of law arises under those circumstances.

3 The final matter put forward is of a more technical nature. In the present case the gardaí were in possession of certain finger print and palm print evidence. Section 8(1) of the Criminal Justice Act 1984 provides:-

“Every photograph (including a negative), fingerprint and palm print of a person taken in pursuance of the powers conferred by section 6 and every copy and record thereof shall, if not previously destroyed, be destroyed as this section directs.”

Section 8(3) reads:-

“Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction shall be carried out on the acquittal, discharge or discontinuance.”

It is argued on behalf of the Applicant that his release on 4th July 2002 resulted in the original charge sheets becoming spent and that his re-arrest amounted to new proceedings against him. Under those circumstances it is argued that the earlier proceedings, in the course of which the prints were taken, had been discontinued and the gardaí were under a duty to destroy the prints which were in their possession. Alternatively it was argued that the release of the accused amounted to a discharge within the meaning of the section. In either case the gardaí would then have been in unlawful possession of the prints at the time of the trial. The Applicant argues that this is a question of the construction of the section, which in turn is a question of law of exceptional public importance.

This point relies very much on its own particular facts, and it is of considerable relevance to note that the Applicant was released, not by a direction of the Director of Public Prosecutions or of the gardaí, but apparently by the Governor of the prison. An argument was sought to be made that the Governor was part of the prosecution machinery, and therefore a discharge by the Governor amounted to a discharge by the Director of Public Prosecutions. This Court cannot accept that argument. Quite clearly the Governor of a prison has no power whatsoever either to discontinue proceedings against an accused or to discharge the accused in the sense that that word is used in s.8. It may well be that the Governor exceeded his authority in releasing the accused but that does not in any way bring him within the section, or invalidate the original charges against him.

The accused was ultimately tried and convicted on foot of the original charges brought against him, in the course of the investigation of which the relevant prints were taken. This Court is quite satisfied that the circumstances of this case could not bring him within s.8 and is satisfied that there is no point of law to be certified to be argued in the Supreme Court.

Accordingly this application is dismissed.