Court of Criminal Appeal refused certificate for leave to appeal on points of law regarding silence inferences.

COURT OF CRIMINAL APPEAL

Record No. 2009/292CCA

Denham C.J.

McGovern J.

Hunt J.

BETWEEN:

The People (Director of Public Prosecutions)

Prosecutor/Respondent

-and-

Liam Bolger

Applicant

Judgment of the Court delivered this 24th day of July 2015, by Mr Justice Tony Hunt

Issues

1. The applicant seeks a certificate for leave to appeal to the Supreme Court pursuant to section 29 of the Criminal Justice Act,

1924 (as amended).

2. The applicant was convicted of the offence of murder by the majority verdict of a jury at the Central Criminal Court (Carney

J.) on 17 November 2009, and was sentenced to life imprisonment from 13 September 2008.

3. The applicant applied to this Court for leave to appeal against conviction. At the hearing for leave, he made submissions in

relation to five issues.

4. By the judgment of this Court on 14 March 2013, the application for leave to appeal was refused in relation to all five issues

raised by the applicant.

5. By Notice of Motion dated 4 March 2014, the applicant then applied for a certificate pursuant to s.29 of the Criminal Justice

Act, 1924 (as amended) for leave to appeal to the Supreme Court to argue two points of law.

6. The points of law in respect of which certification is sought are stated therein as follows:-

a. “Is the caution given to a person in custody being questioned pursuant to the inference provisions (ss.18, 19

and s.19A of the Criminal Justice Act, 1984 as amended by ss. 28, 29 and 30 of the Criminal Justice Act, 2007)

that inferences may be drawn from his failure to answer questions with respect to the offence for which he has

been arrested sufficient to render those interviews admissible at a trial in respect of an offence other than that

for which he was arrested?”

b. “Where a jury are (sic) being charged in relation to an accused’s interviews in which adverse inference

provisions arise and where the accused stated in interview that he had maintained silence on the basis of legal

advice should the trial judge advise the jury that it is obliged to give appropriate weight to the legal advice and,

therefore, to draw the inference only where the jury could be satisfied beyond reasonable doubt that such silence

was maintained because the accused had no explanation to give consistent with his innocence?”

7. Written submissions were delivered by each party, and the application for the s.29 certificate was heard by the Court on 27

March 2015.

8. The applicant accepts that he bears the burden of proving that the two questions posed meet the threshold test for

obtaining leave to appeal to the Supreme Court.

9. The two points of law the subject matter of this application arise from the facts of the case in the following way. Christopher

Barry was shot dead by a lone gunman at Byrne’s bookmakers, Killester, at 14.54 on 13 September 2008. Nine or ten rounds

were discharged from a 9mm semi-automatic Glock handgun in the course of the shooting.

Facts

10. The prosecution case against the applicant was based on the fact that he was the driver of a white Renault Kango van

observed to be connected on the day in question with a Suzuki motorcycle used by the man who shot Mr Barry. The

registration of the white van driven by the applicant was noted by a witness in Killester and reported immediately to the Gardai

by a 999 call.

11. This witness also saw the Suzuki motorcycle speeding on the footpath outside the premises where the shooting occurred,

and subsequently observed the driver of the motorcycle getting into the white van on Killester Avenue, thereby prompting him

to note the matter and contact the Gardai. The prosecution also relied upon CCTV images of a white van travelling from Killester

to Tallaght after the shooting, identification of the driver of the van and his clothing as that of the applicant and correlation

between movements of the applicant’s mobile phone and the white van in question.

12. Sightings of this vehicle prompted action by the Gardai at Tallaght. They identified the applicant driving this van at a

particular location at 16.15. They also observed suspicious activities outside the applicant’s house, including his giving attention

to and the wiping of the passenger door and window of the van. Following a period during which the applicant and the vehicle

were subject to surveillance, he was stopped at 16.45. He admitted that his vehicle was registered in a false name, and to

ownership of a particular phone number. He was arrested under s.30 of the Offences Against the State Act, 1939, and it was

explained to him that the arrest related to the possession of firearms at the location where Christopher Barry had earlier been

murdered at Killester Avenue.

13. The applicant was subsequently questioned in relation to the murder associated with the firearms offence for which he had

been arrested. This Court held that the Gardai were enabled to do this in the circumstances where the arrest was not a

colourable device for the purpose of enabling interrogation to take place. After the Gardai and his solicitor had explained the

inference provisions to the applicant and at a time when these were understood by him, the applicant was asked questions

about his van and his presence in the area at the time of the murder. All of these events were intimately connected with the

firearms offence for which he had been arrested.

14. During the course of the period of his detention at Raheny Garda station, the applicant was given an opportunity to consult

with a solicitor, and was advised by that solicitor in relation to s.18, 19 and 19A of the Act of 1984, as amended. In addition,

the interviewing Gardai also provided an explanation of these provisions to the applicant.

15. Despite the receipt of advice as to the possible consequences of not answering questions covered by the inference

provisions, the applicant effectively asserted that he was declining to answer such questions on the basis that he had been

advised by his solicitor to make no comment, and that it was in his best interest to take this course of action. The learned trial

judge found as a fact beyond reasonable doubt that in approaching these questions in this manner, the applicant understood

the situation, and that the operation of the inference provisions have been properly explained to him.

16. It should also be noted that the admitted fact that the applicant had access to a solicitor in connection with the inference

provisions and his answers at interview referring to the receipt of legal advice in this regard constituted the totality of the

evidence at trial on this issue. Consequently, the salient features of this case are distinct from those of the cases relied upon

by the applicant in the course of argument on this application, such as Beckles v. United Kingdom (2002) 36 EHRR 162 and

Condron v. United Kingdom (2001) 31 EHRR 1.

17. This Court is satisfied that the transcript of evidence establishes that the applicant was well aware of the precise issues

involved in the questions put to him, and of the potential implications of a failure to account for the matters covered by the

inference provisions. The Court can see no basis for drawing an inference from such evidence as is available to it that the

applicant would have acted any differently had he been given a separate but identical warning in relation to a potential murder

charge, having refused to answer questions in relation to the less serious but associated firearms matter. Further, there is no

basis in the evidence for drawing an inference that the applicant would have acted differently but for the advice received by

him.

Appeal certificate

18. The statutory criteria for the grant of such a certificate were most recently considered and explained by this Court in a

judgment delivered by McKechnie J on 23 January 2014 in The Director of Public Prosecutions v. David Patchell. Essentially,

the applicant must prove that not only is there a point of law in issue, but must also demonstrate that the point is of

exceptional public importance, and that it is in the public interest that the point be determined by the Supreme Court. Such a

point of law must arise not only on the facts of any given case, but it must also have the capacity of widespread application in

the subject area in question. Exceptionality requires that the point has a particular gravity and importance. The jurisdiction of

the Supreme Court is not designed to simply provide a further avenue of appeal.

Conclusion

19. Having considered the factual circumstances in which the suggested points of law arise, the breadth of potential application

of the points and the gravity and importance thereof, the Court finds that, in the circumstances, the points in question cannot

be said to be sufficiently grave or important that it is necessary in the public interest that they be referred to the Supreme

Court for adjudication. The Court also considers that they are not capable of meeting the criteria of exceptionality or public

interest set out above, nor in the light of the particular facts do they have the widespread application in the subject area which

would merit the grant of the certificate sought by the applicant.

20. Whilst the Court accepts that the legislation in question represented a significant development in the law applicable in this

area, it sees no reason why the legal implications of this development should not evolve in the appellate courts by reference to

the facts of decided cases in the ordinary way. In so far as it was suggested in argument that general guidance might emanate

from the Court in relation to the operation of such provisions, such guidance could be provided by use of the statutory power

enabling specific regulations to be made as to the issuance of cautions under these provisions.