Man wins appeal over burglary conviction on grounds he was charged with different offence

Man wins appeal over burglary conviction on grounds he was charged with different offence
File photo.

By Ann O’Loughlin

A man has won his Supreme Court appeal over his conviction for burglary involving assault because he was charged with a different offence from that about which he was questioned and cautioned.

While the Supreme Court directed there could be a retrial for Alan Wilson, lawyers for the DPP told the court later on Thursday there would be no retrial as Mr Wilson had, with remission, served most of his six year sentence, imposed in 2013.

The conviction of Mr Wilson and of another man, David Crowley, arose from a 2009 incident at a house at Drumheath Drive, Blanchardstown, during which it was alleged a firearm and a meat cleaver were produced.

A five-judge Supreme Court today unanimously allowed Mr Wilson’s appeal over the Court of Appeal’s dismissal in 2015 of his bid to have his conviction quashed.

During their trial at Dublin Circuit Criminal Court, Mr Wilson, of New Street Gardens, and a co-accused, David Crowley, of New Bride Street, both in their 30s, pleaded not guilty to trespass while committing assault causing harm at Dromheath Drive on June 3, 2009. Crowley denied a second charge of unlawfully possessing a firearm. Both were convicted of the charges against them.

The Supreme Court agreed to hear Mr Wilson’s appeal on grounds it raised issues of general public importance concerning the proper interpretation of Section 19 of the Criminal Justice Interpretation Act 1984.

Section 19 provides gardaí, before or when a suspect is being charged with an offence, can caution the suspect that adverse inferences may be drawn from a failure or refusal to answer questions.

The core issue in the appeal was whether Section 19 may be used in a trial for an offence other than the offence about which the accused was questioned when the section was invoked.

It arose because Mr Wilson was arrested on suspicion of having been involved in unlawful discharge of a firearm and, during questioning, gardaí invoked the adverse inferences provision of Section 19.

Wilson was later charged by the DPP under Section 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001 with allegedly entering the house at Dromheath Drive as a trespasser and committing assault causing harm.

In her judgment, the Chief Justice, Ms Justice Susan Debnham, said the charge against Mr Wilson, of burglary, stated he entered the house as a trespasser and committed an arrestable offence there, "assault causing harm".

The assault in question did not involve use of a firearm, she said. His co-accused was charged with the same burlary/assualt offence and also with having a firearm for an unlawful purpose.

Mr Wilson’s complaint was he was questioned and cautioned by gardaí in relation to a firearms offence, not a burglary, when he has never been charged with a firearms offence. Mr Wilson was not cautioned, and not given the opportunity to seek legal advice, in relation to questions about the burglary, the offence for which he was later charged.

Section 19 may not be utilised in a trial for an offence other than the offence in respect of which the inference caution was expressly invoked, she held. Any other approach would require further legislation, she added.

In a concurring judgment, Mr Justice William McKechnie said Section 19 sets out a series of steps that can relate only to the offence or offences with which an accused person is charged. He could not see any scope within the Section for expanding its meaning to cover other offences, whether described as "inextricably linked" or otherwise.

The inference provisions can only be relied upon at trial where the offence charged is the same as that in relation to which the questioning took place, he held.

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