The High Court has ruled that an accused in a criminal damage case should not have been compelled to answer questions about whether he had told Gardaí that another person broke a window. It said the questioning interfered with his constitutional right to silence and that the proceedings should be dismissed.
The judgment, delivered by Mr Justice Hedigan on 7 June 2012, arose from a case stated by Dublin District Court 52. District Judge Mary Collins had convicted Christian Roibu of causing criminal damage to a window at Dr Quirkeys Amusement Arcade on O’Connell Street, Dublin, on 18 January 2009. He was fined €300 on 23 November 2009.
At the District Court trial, two security employees testified that they saw Roibu break the window. They rejected the defence account that another man had done so. Roibu and a fellow Romanian national gave evidence that another Romanian man was responsible. Garda Denise Sweeney questioned Roibu about why he had not previously told Gardaí that this was his account. He said he had denied breaking the window but did not know the other man’s name. Sweeney disputed his account.
Judge Collins allowed the questions over the defence objection and took the answers into account when assessing the evidence. She found the defence evidence did not raise a reasonable doubt and considered that Roibu and the other defence witness had not made the relevant claims to Gardaí. Roibu’s counsel argued that this breached his right to silence. The prosecution submitted that the case could be distinguished from DPP v Finnerty, because Roibu had not been detained for questioning, and argued that the prosecution evidence was strong.
The High Court concluded that the questioning and the requirement to answer violated the privilege against self-incrimination protected by Article 38.1 of the Constitution. It found that the issue was pivotal to the District Judge’s decision. The court answered the stated questions by holding that the questions should not have been put and compelled, that the judge could not rely on Roibu’s failure to make the claims while under arrest or infer that they were untrue, and that she could not take account of an alleged failure to deny the offence where Garda evidence on that matter had not been given.
The High Court did not itself retry the criminal damage charge. It directed that the proceedings against Roibu be dismissed.