Clarke C.J. O’Donnell J. Dunne J. Charleton J. O’Malley J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of Ms. Justice Iseult O’Malley delivered the 21st day of March 2018
1. The appellant was granted leave to appeal to this 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?
2. The issue arises in the following circumstances. The appellant was convicted on one count of indecent assault after a trial in which evidence of a prepared written statement given by him to investigating gardaí was followed by evidence that, in reply to subsequent questions put by the gardaí, he had referred to the statement and said that he had nothing further to say. The appellant contends that in so doing he was exercising his right to silence. He claims 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. The three rules set out in Finnerty apply to evidence relating to questioning of the accused while in garda custody and are as follows
(i) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.
(ii) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.
(iii) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.
3. The respondent argues 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.
4. The appellant is a medical doctor. The complaint giving rise to the trial was an allegation that in December, 1989, in the course of a routine visit to the home of the complainant (“Ms. H”) to treat her terminally ill mother, he subjected the complainant to a medical examination and while so doing he assaulted her indecently.
5. The complaint to the gardaí was made in October, 2010. The appellant was arrested on the 22nd June, 2011, for the purpose of questioning. It seems obvious that he had previously been made aware of the complaint against him, and he brought with him to the station a prepared statement.
6. At the start of the interview the appellant was cautioned in the standard fashion as follows:
“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.”
7. The appellant confirmed that he understood the caution and that he had been offered the services of a solicitor. He was then asked various uncontroversial questions about, for example, his personal and family life, professional background, and the location and layout of his surgery. He replied fully to all such questions. Next, he was asked if he remembered a girl by the name of M.H being a patient of his, to which he responded “I have a statement here in relation to [M.H]. Other than that I have nothing to say.” The gardaí requested that the statement be read out and signed and the appellant complied with that request.
8. According to his statement the appellant recalled that M.H. had been a patient around the time of the death of her late mother, but he did not retain records from that time. He recalled the final illness of the late Mrs. H. and that he attended in her home, several times a week, up to her death. He did not recall having been at the house after that. The complainant had attended him as a patient on a few occasions around the time of her Leaving Certificate. He did not recall having physically examined her on any occasion. He said that he was “deeply shocked and greatly distressed” that a patient would make allegations against him that were “blatantly false and extremely damaging”.
9. The interviewing Garda then asked a number of questions arising from the complainant’s written statement. These commenced with a query as to whether it was correct that M.H. had been a patient of the appellant from 1989 to 1992, and finished by reading out from her statement the details of the allegation of assault in her home. The appellant was asked if he recalled that happening. In response to each question the appellant replied with the sentence “I have nothing to say other than what’s written in my statement” (or some slight variation thereof).
10. By agreement between counsel these supplementary exchanges were not introduced in evidence in the first trial, which ended in a disagreement. At the second trial the appellant’s statement was adduced in evidence before the jury in the normal way. Counsel for the prosecution then proceeded to lead evidence of the additional questions and responses. It is clear that this was done without notification to counsel for the defence. The latter did not immediately object, because, he says, of fear of drawing the attention of the jury to the evidence in the event that the objection was unsuccessful. However when the jury went out for lunch he immediately informed the trial judge that he was going to apply to have the jury discharged but that he needed to look up some law. The judge asked him why, and counsel responded that the evidence had been inadmissible under the Finnerty rules. Counsel said that he had expected that the evidence given would be confined to the written statement made by his client (and he therefore had not raised an objection in advance).
11. 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 whether you look up law or not.”
12. The appellant then went into evidence. He was not asked about the interview, either in evidence in chief or in cross-examination. No comment on any part of the interview was made by counsel on either side in their closing speeches. In summarising the evidence in his charge to the jury, the trial judge referred to the appellant’s written statement and sworn evidence, and summarised the key assertions. He did not refer to the contentious part of the interview. However, the entirety of the interview memo was made an exhibit and was given to the jury.
13. Following his conviction the appellant was sentenced to a term of imprisonment of two years. Although the Court of Appeal rejected his appeal against conviction it reduced the sentence to twelve months. Bail was subsequently extended by order of this Court.
Decision of the Court of Appeal
14. The appellant originally appealed against his conviction on two grounds. For the purposes of this appeal the only relevant issue argued was that the trial judge erred in refusing to discharge the jury “in circumstances where evidence was adduced by the prosecutor which had no probative value and excessively prejudiced the appellant”.
15. The judgment of the Court of Appeal was delivered on the 13th October, 2016, (see The People at the Suit of the Director of Public Prosecutions v. K.M.  IECA 283). It is apparent from the judgment that the case made on behalf of the Director was that what had occurred did not offend against the right to silence or the privilege against self-incrimination, and that the appellant’s response to the garda questions was not to be compared with a person who actually remains silent, or who consistently says “No comment” or “No comment on the advice of my solicitor”. He had elected not to maintain silence but instead had presented a statement.
16. In the course of its summary of the Director’s submissions, the judgment attributes to her the contention that, consonant with this, the defence had presented to the jury an accused who showed consistency in his account, provided the jury were prepared to accept it, between (i) the contents of his statement; (ii) his responses to the supplementary questions put to him in interview; and (iii) his testimony in the trial. Having considered the trial transcript it appears that this was an error – no reference was made by defence counsel to the supplementary questions. It may be that prosecution counsel was advancing an argument that this course of action would have been open to the defence, but it is clear that the latter did not share this view.
17. The Court of Appeal stated that it agreed with the case made by the respondent, saying (at paragraph 25):
“There is a great deal of difference between saying ‘No comment’ or ‘I don’t wish to say anything’, on the one hand, and saying, having already in fact commented, that ‘I have nothing to add to what I have said already’, on the other hand. The latter was what, in effect, this appellant was saying when confronted with the specifics of the complainant’s statement of complaint. He was not saying nothing or refusing to comment.”
18. The Court seems also to have agreed with the suggestion (if such it was) that the evidence in fact favoured the accused, saying that:
“It was the prosecutor’s duty, as a ‘Minister for Justice’, to elicit before the jury all admissible evidence gathered in the course of the investigation that was both relevant and probative and not just such evidence as happened to be favourable to the prosecution. The prosecution is not therefore to be criticised for adducing before the jury admissible evidence that was both relevant and probative.”
19. I note here that the phrase “ministers of justice” was used by this Court in Director of Public Prosecutions v. Special Criminal Court  1 IR 60, in the context of a disputed ruling of a trial court as to the prosecution’s obligation of disclosure. The point being made was that counsel for the prosecution may not act solely in the interests of the prosecution but also bears some responsibility for ensuring a fair trial.
20. The Court of Appeal held that the evidence was probative
“…in the sense of demonstrating that, when confronted with the specifics of the complainant’s allegations, the appellant’s answer was to continue to rely on his pre-prepared statement in which he had expressly said that the allegations against him were blatantly false.”
21. This was “on one view of it”, potentially of assistance to the defence. The questions asked did not “suggest the accused’s guilt” but merely afforded him the opportunity to add to, or change, what he had said in his statement, in the light of the specific details of the complaint.
22. The Court of Appeal therefore concluded that in the circumstances the appellant had not been exercising his right to silence.
Submissions in the appeal
23. The dispute in this case is about whether or not the appellant’s responses amounted to a refusal to answer questions (and thus an exercise of the right to silence), or relevant and probative evidence not covered by the first rule in Finnerty. As it happens, the second and third rules were complied with, whether or not prosecution counsel and the trial judge thought that they were applicable.
24. The appellant submits that the trial judge and the Court of Appeal erred in their interpretation of what had occurred in the interview. That interpretation is summarised as being that the appellant said, in effect “I have nothing to say in response to this particular question other than what is written in my statement”, whereas the appellant’s contention is that he was saying “I have nothing to say in this interview other than what is written in my statement.”
25. As well as Finnerty, reliance is placed by the appellant on the decision of the House of Lords in R. v. Director of the Serious Fraud Office ex p. Smith  AC 1, which was cited with apparent approval in this jurisdiction by the High Court in Heaney v. Ireland  3 IR 593. In the House of Lords, Mustill J. noted (at pp. 30-31) that the right to silence does not denote merely a single right but rather “refers to a disparate group of immunities” which includes, inter alia:
“… a specific immunity (at least in certain circumstances which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before trial, or (b) to give evidence at the trial.”
26. Counsel points out that it is common for interviews in detention to result in mixed responses on the part of the suspect, with some questions being answered while others are met with silence or with some form of express refusal to answer. That has given rise to the practice, followed since the judgment in Finnerty, of editing interview memoranda to remove instances of an accused person exercising his or her right to silence. In this regard counsel cites DPP v. Brazil (Unrep., Court of Criminal Appeal, 22nd March, 2002).
27. Counsel submits that the prejudice to the appellant lay in the fact that, in the circumstances of the case, his credibility was squarely pitted against the credibility of the complainant. The presentation of the disputed interview material portrayed him as not being forthright or co-operative with the gardaí, and as having something to hide. The real risk that arose was that the jury might infer guilt from silence.
28. While it is recognised that inferences may now, pursuant to s. 19A of the Criminal Justice Act 1984, be drawn from pre-trial silence in relation to all serious offences, it is submitted that such provisions would be unnecessary if a jury could simply be told that an accused had invoked the right to silence without being given any direction in relation to such. In any event, the safeguards specified in section 19A(3) of the Act were not met in this case. It is argued that the constitutionality of statutory provisions of this nature, as considered by this Court in Rock v. Ireland  3 IR 484, is dependent on such limiting factors. It is also submitted that, if a “no comment” interview can be adduced in evidence in this fashion, the caution in its current form is inadequate and would require amendment.
29. Reference has also been made to the jurisprudence of the European Court of Human Rights, beginning with Funke v France(1993) 16 EHRR 297 (where the Court held that the right to silence or privilege against self-incrimination was protected under the fair trial guarantee in Article 6 of the Convention). That was confirmed in Murray v. United Kingdom(1996) 22 EHRR 29, although the Court made it clear that the right to silence was not absolute and that it could in some circumstances be limited by appropriate inference-drawing provisions.
30. On behalf of the respondent, it is submitted that there was no exercise of the right to silence, and therefore no question of drawing adverse inferences from such an exercise. It is pointed out that the act of volunteering an exculpatory statement is an instance of waiving the right to silence. Evidence that the suspect referred to the statement in response to subsequent questions, saying that he had nothing further to add, should be seen as relevant and probative evidence which might assist the jury in assessing the credibility of the statement given.
31. It is submitted that the situation here is similar to that of DPP v. O’Shea IECCA 49. In that case the trial judge had agreed to the deletion of most “no comment” responses from the memoranda of interview but had left others for the purpose, as described in the Court of Appeal judgment, of giving context to the question being asked. The Court of Appeal considered that she had done so correctly and that only material of probative value had been admitted. Finnerty was distinguished because the interviews with Mr. O’Shea had produced evidence which could be described as having some probative value, while no statement of any description was offered by the accused in Finnerty. The respondent submits that the rationale behind the decision in O’Shea was to distinguish between an accused invoking his right to silence and an accused who decides to answer particular questions while remaining silent when follow up questions are posed.
32. The respondent also cites DPP v. O'Reilly IECCA 18 and argues that there is a difference between disclosing to the jury the simple fact that an accused exercised his right to silence in questioning and inviting the jury to draw adverse inferences from the failure of an accused to give certain explanations to the gardaí while in custody.
33. It is stressed that the jury in the present case was not invited by the prosecution or the trial judge to draw any inferences, and nor did the prosecution invite the jury to infer that the accused had exercised his right to silence. In fact, the prosecution case was and is that the appellant at no stage exercised his right to silence.
34. The respondent submits that the rights protected by Article 6 of the European Convention of Human Rights are not absolute and cites the judgment of the European Court of Human Rights in the case of Murray v. United Kingdom(1996) 22 EHRR 29.
The constitutional status of the right to silence
35. There is no doubt about the proposition that the right to silence is protected by the Constitution. In Heaney v. Ireland and Rock v. Ireland, this Court approached the matter on the basis that the protection lay in the provisions of Article 40.6, finding that the right to silence was a corollary of the right of freedom of expression.
36. However, much of the emphasis in Rock is on the possible consequences of inference-drawing provisions (in that case, ss. 18 and 19 of the Criminal Justice Act 1984) for the fairness of the trial process. It was stressed that the trial court was entitled but not obliged to draw inferences, and that there were safeguards for the accused in the trial process. At p. 497 of the report Hamilton C.J. stated:
“In deciding what inferences may properly be drawn from the accused person’s failure or refusal, the court is obliged to act in accordance with the principles of constitutional justice and having regard to an accused person’s entitlement to a fair trial must be regarded as being under a constitutional obligation to ensure that no improper or unfair inferences are drawn or permitted to be drawn from such failure or refusal.”
37. Subsequent authorities have confirmed that, notwithstanding the Heaney analysis, the right also belongs to the group of fair trial rights protected by Article 38.1 (the right to trial in due course of law). This is clearly stated in Re National Irish Bank 3 IR 145, where one of the issues was whether answers given to Companies Act inspectors, under powers of compulsion, might be used in criminal proceedings against the persons questioned. Barrington J. (with whom the other members of the Court agreed) traced the common law development of the privilege against self-incrimination and then went on to consider its status under the provisions of the Constitution, with particular reference to Article 40.6.1° and Article 38.1. In the context of the case, Article 40.3.2° was seen as reinforcing the other two constitutional guarantees.
38. Having considered the principles considered by the Court in Heaney v. Ireland, Barrington J. held that, so far as Article 40.6 was concerned, the powers given to the inspectors to compel answers were not disproportionate to the public interest in investigating illegality and malpractice in the banking sector. Accordingly, interviewees were not entitled to refuse to answer questions. However, different considerations arose in respect of Article 38.1.
“That Article, as reinforced by Article 40.3, deals with the conduct of a criminal trial and provides that no person is to be tried on any criminal charge ‘save in due course of law’. The phrases ‘due course of law’ and ‘due process of law’ like the phrase ‘equality before the law’ embody dynamic constitutional concepts into which lawyers have obtained deeper insights as society has evolved. But it is doubtful if the principle of proportionality – so important in other branches of constitutional law – can have any useful application here. A criminal trial is conducted ‘in due course of law’ or it is not.”
39. This approach is consonant with the analysis of this Court in Director of Public Prosecutions v Gormley  2 IR 591 of the right to consult a solicitor prior to questioning by gardaí. Prior to Gormley this issue had generally been dealt with as a matter affecting the legality of a suspect’s detention. Having considered the authorities in this jurisdiction and other common law countries, as well as the jurisprudence of the European Court of Human Rights, the members of the Court agreed with Clarke J. that arrest and detention for the purposes of investigation should be regarded as a stage of the criminal trial process, attracting the protection of Article 38.1. The right to legal advice was thus seen as part of the protection afforded by the Constitution to fair trial rights. While legal advice might be needed by a person in detention in relation to many matters, Clarke J. was satisfied that the constitutional right to advice was designed to support the right not to incriminate oneself, amongst other rights including the right to a fair trial. It was, for that reason, an important constitutional entitlement of high legal value.
Finnerty and subsequent authorities
40. Finnerty is sometimes characterised as a case where the accused made no comment in response to questioning. This is true to a certain extent – he answered no questions during the interviews while he was in garda custody. However this is not an entirely comprehensive description.
41. The complainant in the case alighted from the accused’s car in a distressed state and immediately made an allegation of rape to gardaí in the vicinity. The accused was thereupon confronted and cautioned by the gardaí. His response was exculpatory in effect – he denied rape and said that he and the complainant had engaged in consensual kissing “and such”. He was then arrested and detained, and availed of his right to legal advice. He made no further statement of any sort.
42. At the trial, the complainant was cross-examined by counsel for the defence on the basis that her entire account of the evening was false and that the accused would give evidence of consensual sexual intercourse. He did so, and prosecution counsel was permitted, on application to the trial judge, to cross-examine him as to the fact that he had not given this account to the gardaí.
43. The conviction was initially upheld by the Court of Criminal Appeal for reasons that are particularly relevant to the instant case. In an ex tempore judgment Lynch J. said:
“The Applicant claims that that permission to give that evidence of his silence and to cross-examine him about the silence was a breach of his right to silence. Now his right to silence was emphasised by the learned trial judge and the only purpose of this evidence and cross-examination by the prosecution of the Applicant related to the reliability of the Applicant's detailed statement of explanation. There were before the jury manifestly two contradictory versions of what had happened on this particular night. The issue was which of these versions was to be believed and it was quite proper and reasonable for the prosecution to ask the Applicant why he had not given the full exculpatory account of the evening's events at an early stage instead of for the first time during the course of the trial.
This course of events does not trench in any way on the right to silence which as I have said was emphasised very strongly by the learned trial Judge but this form of evidence of the Applicant's silence in the Garda Station and of cross-examination by the prosecution was highly relevant to the credibility of the Applicant's lately preferred account of events. The evidence as to his silence and his cross-examination about the silence were permitted and adduced only for that purpose and that was made quite clear and in the circumstances of this case that course of proceedings was perfectly permissible and proper.”
44. It was noted in the subsequent appeal to this Court, where the appeal was unanimously allowed, that the reference in the judgment to the trial judge having emphasised the right to silence was mistaken. He had in fact made no reference to the accused’s right to silence while under questioning, although he had stressed that the accused had not been obliged to give evidence in his own defence.
45. Giving the sole judgment in this Court, Keane J. emphasised that the more general constitutional and legal dimensions of the right to silence were not in issue in the appeal. Similarly, the court was not concerned with the common law principles relating to the possible admissibility of a statement made in the presence of a defendant accusing him of a crime, upon an occasion which might reasonably be expected to call for some explanation or denial. At this point the judgment continues:
“Nor are we concerned with the different considerations which may arise where the accused denies the charge and the adduction of that evidence, given its extremely limited probative value, may, at least in some circumstances, compromise the fairness of the subsequent trial. For that reason, it has been the law both in England and Ireland since the leading case of R. v. Christie  A.C. 545, that a trial judge should in most cases take care to ensure that such evidence is excluded where it has little or no evidential value. In the present case, that issue does not arise since the adduction in evidence of the exculpatory statement made by the applicant to Garda Healy, when he was stopped by the gardaí, was not objected to on his behalf.”
46. The sole issue in the appeal was the claimed right of a person detained under s.4 of the Criminal Justice Act 1984 to refuse to answer questions put to him by gardaí during the course of his detention and the corollary of that right, i.e. the need to ensure that no inferences adverse to him were drawn at any subsequent trial from the exercise of that right.
47. Having outlined the position at common law before the enactment of the Act of 1984, Keane J. found that the introduction of that Act, along with the safeguards provided for the rights of persons detained pursuant to its provisions, did not in any way modify the right of a person so detained to refuse to answer questions put to him by the gardaí and his entitlement to be reminded of that right before any questioning began. He continued:
“That right would, of course, be significantly eroded if at the subsequent trial of the person concerned, the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardaí an account similar to that subsequently given by him in evidence. It would also render virtually meaningless the caution required to be given to him under the Judges’ Rules.
It must also be borne in mind that it is a usual practice for solicitors to advise their clients while they are in custody, not to answer any questions put to them by the gardaí, if they consider that it would not be in their interests to do so. However, if the jury could be invited to draw inferences from the failure to reply to such questions, the result would be that persons in custody would have to be advised by solicitors that, notwithstanding the terms of the caution, it might be inimical to their client’s interests not to make a full statement to the gardaí, thereby eroding further the right to silence recognised at common law.
Had the Oireachtas intended to abridge the right to silence in this manner, it would have expressly so legislated. Sections 18 and 19 of the Act of 1984 enable the court of trial to draw inferences from the failure or refusal of a person arrested by the gardaí, to account for the presence of certain objects in his possession, or his having been found at a particular place. Such inferences may afford corroboration of any evidence, but the person may not be convicted, of an offence solely on the basis of such inferences. This leads to the inevitable conclusion that no such general abridgment of the right of silence was intended to be effected where a person declined to answer questions put to him by the gardaí during the course of such a detention.”
48. Having regard to the judgments of the Court in Heaney v. Ireland, Rock v. Ireland and Re National Irish Bank Ltd., Keane J. concluded that the right of suspects in custody not to answer questions, recognised at common law, was also a constitutional right and the provisions of the Act of 1984 must be construed accordingly. In the absence of any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion followed “inevitably” that the right was unaffected by the Act (save in cases coming within ss. 18 and 19), and must be upheld by the courts.
49. Given the course of events in the trial in Finnerty, Keane J. considered that the jury might well have been under the impression that they were entitled to draw adverse inferences from the failure of the defendant to give his version of events in detail in the garda station. Any inferences drawn to that effect would have been in direct violation of the applicant’s constitutionally guaranteed right to remain silent, and might well have been a factor in the jury’s assessment of the credibility of the applicant’s account of what happened between him and the complainant.
50. The consequences of the ruling in Finnerty were further explored in a sequence of appeals before the Court of Criminal Appeal.
51. In The People (Director of Public Prosecutions) v. Brazil (Unreported, Court of Criminal Appeal, 22nd March, 2002), the prosecution relied in part on evidence of verbal statements alleged to have been made by the accused in the course of interview. The defence had objected to the evidence on the ground that it was not in any way probative and was prejudicial. The trial judge directed that the interview notes be edited to exclude the parts that simply recorded the exercise of the right to silence, leaving to the jury only those parts that recorded statements that were either incriminatory or exculpatory. That was done, but one of the garda witnesses volunteered in evidence the fact that the accused had been asked a number of questions to which he had made no reply. The Court of Appeal (presided over by Keane C. J.) held that this “passing reference” would not of itself be sufficient to render any verdict subsequently arrived at unsafe or unsatisfactory. Referring to Finnerty, Keane C. J. said:
“It has to be remembered that in the DPP v Finnerty case the applicant had maintained his right to silence throughout the garda interview and nonetheless the prosecution in that case sought to adduce evidence and indeed to cross-examine the defendant when he came to give evidence as to why he had given no account of the matter to the gardaí. That is the context in which that ruling of the Supreme Court has to be seen. In the present case the court is satisfied that the ruling of the trial judge perfectly properly sought to exclude, as far as possible, any indication that the applicant had simply declined to answer questions and the volunteering by Sergeant McCarrick of that particular answer would not vitiate the account of the interview and the record of the interview which was before the jury to such an extent as to render it unsafe for the jury to take into account.”
52. In The People (Director of Public Prosecutions) v. McCowan  4 I.R. 349 the evidence went beyond “a passing reference”. Two garda witnesses gave evidence that in some interviews the accused had stated in answer to many questions that he would say nothing on the advice of his solicitor. The first reference was volunteered by the witness, but the second was in response to a leading question from counsel for the prosecution. Giving the judgment of the Court of Criminal Appeal, Hardiman J. said:
“We consider that this should not have occurred and indeed it is not disputed that this should not have occurred. The authority of the court and the judgment of Keane J. in The People (Director of Public Prosecutions) v. Finnerty  4 I.R. 364 is very clear. That authority is also very simple to observe and we would be gravely perturbed if it were thought that it could be departed from at the expense of a rebuke or a comment by this court, but that it would not be taken seriously beyond that.”
53. At p. 353 of the report, having dealt with other issues, the judgment returns to this topic. It is stated that a court should be slow to accept an argument by the prosecution that nothing turned on a breach of the rules of this nature.
“We are certainly slow to accept it in the circumstances of this case because we feel that The People (Director of Public Prosecutions) v. Finnerty was well established at the time that this trial took place and that this was a pretty clear breach of what is laid down in that case. Therefore we are not disposed either to consider that it was of little or no importance (it was of sufficient importance for the prosecution deliberately to bring the evidence out), or that the proviso could be applied as we could not be sure that no miscarriage followed from it.”
54. Finnerty was further discussed in The People (Director of Public Prosecutions) v. O’Reilly IECCA 18. The issue there arose from the fact that, while the interview memoranda given to the jury had been edited in order to comply with Finnerty and to exclude irrelevant material, the times at which the interviews started and ended had been left in. The defence argued that since some of the memoranda would appear very short considering the length of time taken in interview, the jury members would inevitably become aware that the accused had exercised his right to silence for at least some of the time. It was submitted that this breached the Finnerty principles.
55. In rejecting this ground of appeal, the Court of Criminal Appeal (in a judgment given by Murray C.J.) observed that it was not the law that any evidence from which it might be inferred that an accused had exercised his right to silence should be excluded from the jury for that reason alone. That observation is followed by the comment that such evidence could certainly be excluded on grounds of irrelevance if it was not relevant to an issue in the trial.
56. Murray C.J. analysed Finnerty in the following terms:-
“The Finnerty case was not about disclosing to the jury just the simple fact that an accused had exercised his right to silence but the overt proof of that fact for the purpose of inviting the jury to draw adverse inferences from the failure of the accused to give certain explanations to the gardaí when in custody. The Finnerty case concerned a decision by the prosecution, in the course of the trial, and permitted by the trial judge, to expressly elicit from An Garda Síochána who interviewed the accused, the fact that he declined to say anything during such interviews in relation to the complainant's accusations. This was done by the prosecution for the express purpose of inviting the jury to draw adverse inferences as to the credibility of the accused and in particular for the purpose of cross-examining the accused, when he gave evidence, (it already having been stated that he would be giving evidence) as to why he did not give his account of events when interviewed by the members of An Garda Síochána during his detention. Nothing of that nature occurred in this case.”
57. It was noted that, by contrast, in O’Reilly the prosecution had consciously sought not to introduce evidence of questions which the accused had declined to answer, because it had no evidential value. At no stage had the prosecution invited the jury to infer that the accused had exercised his right to silence, and the jury had not been left under the impression that they were entitled to draw inferences adverse to the accused from his silence. The trial judge had told them that what they heard in evidence with regard to the interviews were the answers to relevant questions, and that anything else that had occurred was irrelevant and not of evidential value.
58. This case is not concerned with the operation of any of the various statutory provisions that can lead, in certain circumstances, to the drawing of inferences at trial from evidence that the accused exercised the right to silence in the pre-trial investigation. However it is relevant to note that the Court has emphasised that such provisions must be strictly construed, and that the statutory safeguards provided must be enforced. In Director of Public Prosecutions v. A. McD.  3 IR 123 the discussion by McKechnie J. of the operation of s. 19 of the Criminal Justice Act 1984 commenced with the observation that the right to silence, in its variety of forms, was based not only on the common law but also had a “strong constitutional setting”.
“In the context of a detained person who is under interrogation as a suspect in the commission of a criminal offence and who subsequently is in fact charged with such an offence, the right, if in issue at the trial, is firmly anchored in Article 38.1 of the Constitution. This is particularly so where, as in this case, the potential consequences of exercising that right are directly in play at the trial. Therefore, it is not necessary to say where in other circumstances the right can also be found, such as in Article 40.3.1° of the Constitution, or in Article 40.6.1° as a corollary to the right of freedom of expression, as stated by this Court in Heaney v. Ireland  1 I.R. 580 and reiterated in Rock v Ireland  3 I.R. 484 at p. 499.”
59. McKechnie J. therefore stated that, notwithstanding the authorities pursuant to which statutes providing for the drawing of inferences from silence had been upheld, it remained the case that the provisions in question amounted to an impairment of a right that had protection at constitutional level.
60. In McD. part of the debate concerned the question whether the respondent to the appeal had, in fact, “failed or refused” to give an account for the purposes of the section. In discussing this issue McKechnie J. observed that a refusal will entail a degree of deliberateness and an unwillingness to engage with the investigating authorities.
61. In Director of Public Prosecutions v Wilson IESC 53 the Court quashed a conviction where the inference provisions had been invoked incorrectly.
62. The prosecution argument in the instant case is, of course, that what occurred between the appellant and the interviewing garda is not properly described as an exercise by the appellant of the right of the right to silence, and that it did not seek to have the jury draw any adverse inferences from it. It has maintained that the responses of the appellant to the supplementary questions were relevant and probative in that they demonstrated that the appellant was standing by what he had said in his statement.
63. In my view this contention is not only questionable in relation to the facts of the case but leaves open a real risk that what occurred in the trial was contrary to the principles established in the authorities.
64. The discussion in this case, as in Finnerty, is concerned with the consequences of a suspect’s responses to garda questioning, and not with the different evidential consequences that may attend failure to respond to allegations in other settings.
65. The first consideration is that the Court is dealing with a right protected under the Constitution, as well as at common law and under the European Convention on Human Rights. Waiver of a constitutional right is of course possible. The commonplace occurrence of admissions of guilt to the gardaí, and formal pleas of guilty in court, means that the right to silence is probably waived every day in the garda stations and courts of every county. However it is not to be lightly assumed that waiver of a constitutional right has taken place – the courts have always held that it must be clear from either an express statement or by necessary implication that the suspect has spoken freely and voluntarily, in the knowledge that he or she is not obliged to do so. In cases of dispute, it has always been for the prosecution to prove this beyond reasonable doubt.
66. Furthermore, it has always been accepted that a suspect is entitled to elect to answer some questions and to refuse to answer others. That is why practitioners and trial judges are used to the concept of editing interview memoranda. The making of a voluntary statement, as in this case, amounts to a clear waiver of the right to silence to that extent, but it does not follow that the suspect thereby waives the right in respect of either a prior or subsequent refusal to answer questions. I consider that the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words. Moreover, it is not appropriate to parse the words used as if they were the words of a parliamentary draughtsman. A consideration of the context is essential. I would therefore hold that it was incorrect for the trial judge to distinguish Finnerty simply on the ground that the appellant had not employed the “no comment” formula.
67. The Court of Appeal saw the answers in this case as amounting, in each instance, to a definite response to the questions posed, confirming the appellant’s statement that the allegation against him was false. This view would imply that it was as if the appellant had stated, in response to each question, that he had already said that everything alleged by the complainant was false. Whether that is the way the trial judge saw it is not at all clear from his ruling – all he said was that the case was not the same as Finnerty. Yet Finnerty involved a suspect who gave an initial exculpatory statement and thereafter refused to answer questions. If the trial judge thought that there had been an express or implicit waiver of the right to silence in this case, he should have explained his finding.
68. My own view, looking at the transcript, would be that on the face of it the probability is that the course of action intended and adhered to by the appellant during the interview was to answer 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. He was not thereby implying that each and every detail contained in the complainant’s statement was untrue – some, such as a reference to his wife’s practice as a reflexologist, were entirely innocuous. If that view is correct, then the correct interpretation of what happened would be that the appellant was refusing to answer questions put to him by the gardaí about the allegation. That is an exercise of the right to silence.
69. However, it may be that this serves only to demonstrate that it is possible for different judges reading the interview notes to reach different interpretations of the words used by the appellant. The problem is that because of the way events unfolded in the trial, the issue was never put up for resolution by the trial judge until the contentious evidence had already been given. It is unfortunate that counsel for the prosecution did not adopt the normal practice of alerting the defence to the fact that he intended altering the course taken by him in the first trial, so that objection could have been taken at the appropriate time and, if necessary, evidence could have been heard on the issue.
70. Having ruled that the evidence was not rendered inadmissible by reason of the Finnerty principles, the trial judge did not indicate a view as to the basis for admitting it. He did not explain its relevance to any issue in the trial, or why he was rejecting counsel’s complaint that his client had been prejudiced in the eyes of the jury. It must be borne in mind that one of the primary considerations in relation to the admissibility of evidence is relevance. If evidence is clearly irrelevant it may be possible to disregard it even where it has already been adduced before the jury, but it must be excluded if its relevance and probative value are outweighed by its prejudicial effect.
71. It must be assumed that the trial judge thought that the evidence was both relevant and probative, and not unduly prejudicial, but in that case it was, in my view, necessary that some guidance should have been given to the jury as to how it should be treated. The closing speech of counsel for the prosecution did not advert to the matter at all and, as it happens, the judge did not, in his charge to the jury, address in any way the lawful approach to drawing inferences from evidence. Juries are entitled to assume that evidence presented to them is relevant and probative, and if they are not instructed as to the drawing of inferences may well feel further entitled to draw any inferences that appear to them to be appropriate.
72. It may be that the jury drew the favourable inference that the appellant had maintained a consistent position throughout. However, in the absence of any guidance as to how they should approach the evidence, or what it was intended to prove, it seems to me that the court could not discount the real possibility that the jury in this case drew an adverse inference to precisely the same effect as that of the Court of Criminal Appeal in Finnerty – that the deliberate refusal of the appellant to engage with the specific questions reflected adversely on the credibility of his sworn evidence. The judgment of this Court in that case explains clearly why such an approach is impermissible.
73. This is not, as in Director of Public Prosecutions v. O’Reilly, a question of a mere passing reference in the evidence. The interview notes were read out in full before the jury and were given to them unedited as an exhibit. As Hardiman J. said in McGowan, the court cannot accept that nothing turned upon this factor.
74. I would respectfully adopt the words of Cory J. in 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.”
75. In the circumstances I would allow the appeal and quash the conviction.