Director of Public Prosecutions v J.D. (Unapproved)

Factual and Procedural Background

The Appellant was pursued by members of the police force in The City on 15 December 2016 for alleged road-traffic misconduct. Four days later he was arrested and charged with several summary traffic offences. On 9 February 2017 an additional indictable count of reckless endangerment was preferred, but the Appellant was not detained or interviewed in relation to that indictable offence.

At trial before the Circuit Criminal Court on 15 November 2017 the defence, in the jury’s absence, applied to have all counts dismissed on the ground that the failure to interview the Appellant rendered any trial constitutionally unfair. The trial judge dismissed the endangerment count and allowed the remaining summary counts to proceed, regarding the absence of an interview memorandum as an “insurmountable hurdle.”

The Respondent appealed by way of case stated to the Court of Appeal under section 34 of the Criminal Procedure Act 1967. The Court of Appeal found that the trial judge had erred in both the procedure adopted and the substantive conclusion, and remitted the matter. The Appellant obtained leave to appeal to the Supreme Court, with The Commission participating as amicus curiae.

Legal Issues Presented

1. Whether an application to halt a criminal trial on fairness grounds must be determined during the trial (after evidence is heard) rather than as a preliminary “pre-emptive strike.”
2. Whether an accused person enjoys a constitutional entitlement under Article 38 to be arrested, interviewed, and to have an unsworn statement of defence placed on the record for use at trial, such that the absence of that interview renders any subsequent trial unfair.

Arguments of the Parties

Appellant's Arguments

• Article 38 guarantees a two-pronged right during investigation: (i) a duty on police to disclose in detail the evidence against the suspect, and (ii) a correlative right to respond in interview, thereby allowing a defence to be recorded without compelling the accused to testify.
• The failure to afford that opportunity amounted to “lost evidence,” fatally prejudicing any future jury trial.
• International jurisprudence (e.g. Salduz v Turkey) underscores the importance of early legal assistance and the ability to “build the defence” during questioning.

Respondent's Arguments

• No constitutional or statutory provision confers a right to be arrested or interviewed; the investigative stage is not governed by audi alteram partem norms applicable to courts.
• Fair-trial concerns should be addressed, if at all, by the trial judge in a voir dire, where remedies such as exclusion of evidence are available.
• The Appellant failed to identify any concrete prejudice or specify what exculpatory material was allegedly “lost.”

Amicus Curiae's Submissions

• A voluntary interview could and should have been offered; however, the ultimate constitutional test remains whether a trial in due course of law can proceed.
• Emphasised the need to safeguard the right to silence, cautioning against any inference that an accused must testify to have a defence considered.

Table of Precedents Cited

Court's Reasoning and Analysis

Procedural Issue: Relying on PO'C, CC, and related authority, the Supreme Court held that fairness applications should, save in exceptional cases, be entertained within the trial after evidence is adduced. The Circuit Court therefore acted outside established practice by ruling on untested material before the prosecution case was opened.

Substantive Issue: The Court rejected the existence of a free-standing constitutional right to be arrested, interviewed, or to have an unsworn statement placed before the jury. It reasoned that:

• Article 38 safeguards the fairness of the trial; investigative shortcomings matter only insofar as they compromise that trial.
• The right to silence is a negative protection against compulsion, not a positive entitlement to have unsworn assertions admitted without cross-examination.
• The Appellant failed the “duty of engagement” by never identifying what exculpatory material was supposedly lost.
• Any perceived unfairness could have been cured by procedural remedies (further disclosure, admission rulings, judicial directions) without dismissing the indictment.

Consequently, the Supreme Court found no prejudice capable of rendering a future trial unconstitutional.

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the Court of Appeal’s order and answered the case stated in the negative, holding that the Circuit Court was incorrect to direct an acquittal on the endangerment count.

Implications: The judgment clarifies that:

• Applications to restrain criminal trials on fairness grounds should ordinarily be dealt with during the trial after evidence is called.
• No constitutional right exists to be interviewed or to have an unsworn statement automatically placed before a jury; the focus remains on whether the eventual trial process is fair.
• Trial judges retain flexible remedial powers—short of terminating proceedings—to address investigative shortcomings. The decision neither creates new rights for accused persons nor imposes new investigative duties on the police or prosecution.