DPP v C.C.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 21 July 2016 |
| Neutral Citation | [2016] IECA 261 |
| Date | 21 July 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | 38/15 39/15 |
[2016] IECA 261
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Mahon J.
Edwards J.
38/15
39/15
In the matter Section 23 of the Criminal Procedure Act 2010
and
Criminal procedure – Exclusion of evidence – Re-trial – Respondents seeking to present arguments as to why a re-trial should not be ordered – Whether the court should order a re-trial
Facts: The respondents, in 2009, went on trial. They were convicted and were subsequently sentenced to lengthy terms of imprisonment. They appealed and their convictions were quashed in April 2012 on Damache grounds. A re-trial was ordered and the re-trial proceeded resulting in a disagreement on the 21st December, 2013. Arising from this agreement a re-trial was ordered which took place in January 2015. In that case following a voire dire, the trial judge excluded telephone evidence on which the prosecution depended. The Court of Appeal found that she erred in that regard. The respondents had indicated that if the Court was concluding that the evidence had been wrongly excluded and so was quashing the acquittals, they would wish to present arguments as to why a re-trial should not be ordered. The Court indicated that it would facilitate that request. The respondents submitted that a re-trial could not be conducted fairly and they advanced a number of arguments in that regard some of which might be called arguments of general application, that memories will fade with the passage of time and that in this case some witnesses will be giving evidence for the sixth or seventh time; in that situation it would be difficult for them to be clear what they were actually remembering of the incident and what they were remembering of giving evidence previously. By extension the respondents submitted that it would be difficult for those called on to assess the evidence of such witnesses.
Held by Birmingham J that, having considered s. 23 of the Criminal Procedure Act 2010, a fair trial in January 2017 was indeed possible. Birmingham J held that while the twists and turns arising from the interaction first of the Supreme Court decisions in Kenny and Damache and then the decisions in Damache and J.C. were undoubtedly unusual, the fact that what had happened was unusual did not render it unfair. The Court believed that a fair trial was possible and that a consideration of all the factors led very clearly to the view that the interests of justice were served by a re-trial.
Birmingham J held that the re-trial should be so ordered.
Appeal allowed.
Earlier this term this Court delivered judgment in relation to an application by the DPP pursuant to s. 23 of the Criminal Procedure Act 2010. The respondents to that application had indicated that if the court was concluding that the evidence had been wrongly excluded and so was quashing the acquittals that they would wish to present arguments as to why a re-trial should not be ordered. The court indicated that it would facilitate that request and that argument has taken place this morning.
In the course of the earlier judgment, the court referred to the facts surrounding the underlying offences, doing so by quoting from the judgment of Charleton J. in the case of Byrne and Byrne v. The judges of the Dublin Circuit Court and DPP, a related or linked case. The court also in that judgment referred to the procedural history in some detail and that history is undoubtedly an elaborate and convoluted one. Suffice to say at this stage that in 2009, five individuals including Mr. CC and Mr. MF went on trial. CC and MF were convicted and were subsequently sentenced to lengthy terms of imprisonment. They appealed and their convictions were quashed in April 2012. Essentially quashed on what has come to be known as Damache grounds.
A re-trial was ordered and the re-trial proceeded resulting in a disagreement on the 21st December, 2013. Arising from this agreement a re-trial was ordered which took place in January 2015, before Judge Mary Ellen Ring, as she then was. In that case following a voire dire, the trial judge excluded telephone evidence on which the prosecution depended. This Court in its earlier judgment has found that she erred in that regard. The issue now is whether the court should order...
To continue reading
Request your trial
-
O'Grady v Abbott Ireland
...reckonable for the purpose of s. 3 must be unusual. The distinction, per Peart J. in the case of Lavin v. Dublin Airport Authority plc. [2016] IECA 261 at para. 46: - ‘The distinction between an unusual danger and a usual danger is important even in the context of s. 3 of the 1995 Act. A fi......
-
Lavin v Dublin Airport Authority Plc
...- AND - DUBLIN AIRPORT AUTHORITY PLC. DEFENDANT/APPELLANT [2016] IECA 268 Peart J. Peart J. Hogan J. White J. Neutral Citation Number: [2016] IECA 261 Appeal No. 2015 No. 261 THE COURT OF APPEAL (CIVIL) Negligence – Liability – Duty of care – Respondent seeking liability for negligence and ......
-
Carroll v Phelan and Others
...particular reliance on the judgments of the Court of Appeal in Byrne v Ardenheath [2017] IECA 293 and Lavin v Dublin Airport Authority [2016] IECA 261. The appellants also placed reliance on the fact that the precise mechanism of the accident was something that the appellants could not have......
-
DPP v C.C.
...having been adjourned for further submissions, a further judgment of the Court of Appeal was delivered ex tempore on 21st July, 2016 ( [2016] IECA 261). 3. The order appealed against 3.1 The order appealed against, the order dated 22nd July, 2016 which was perfected on 9th November, 2016, m......