DPP v T.N.

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 28 May 2020
• Neutral Citation: [2020] IESC 26
• Date: 28 May 2020
• Court: Supreme Court
• Docket Number: Supreme Court Record No. 2018 / 134

IN THE MATTER OF SECTION 23 OF THE CRIMINAL PROCEDURE ACT 2010

Between /

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor/Appellant/Respondent

-and-

T.N.

Accused/Respondent/Appellant

[2020] IESC 26

O'Donnell J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley J.

Supreme Court Record No. 2018 / 134

Court of Appeal Record No. 2015 / 274

THE SUPREME COURT

Acquittal – Retrial – Waste Management Act 1996 s. 9(1) – Respondent seeking a retrial – Whether the trial judge had erred in law

Facts: The appellant, on the 27th October, 2015, following a trial in the Dublin Circuit Criminal Court, was acquitted of nine charges under various provisions (ss. 232(1), 6(a) and 9(1)) of the Waste Management Act 1996. The respondent, the Director of Public Prosecutions (DPP), then appealed to the Court of Appeal, pursuant to s. 23(3)(b) of the Criminal Procedure Act 2010, on the basis that the trial court had been wrong in law to direct a verdict of not guilty and that the evidence adduced in the trial had been such that a jury might reasonably have been satisfied beyond a reasonable doubt of the appellant’s guilt in respect of the alleged offences. The relief sought reflected the wording of that subsection, and also subsections 23(11) and (12), pursuant to which a retrial of the respondent was prayed for. The Court of Appeal delivered two judgments in the matter: one on the 29th January, 2018, in which the court found the trial judge had indeed erred in law, and a second on the 20th June, 2018, in which, having heard further submissions from both parties, it quashed the acquittal and ordered a retrial. The Court’s decision of the 29th January, 2018, and its order dated the 20th June, 2018, which was perfected on the 24th August, 2018, were the subject of an application for leave filed by the appellant. Having considered both the application made and the notice of opposition filed in response, the following question was identified in the Determination of the Supreme Court as being appropriate for a further appeal: “Where, as in section 9(1) of the Waste Management Act 1996, a statute provides that where an offence ‘has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate’ then that person will also be liable similarly, what degree of responsibility is required to meet such a statutory definition?” The central issue was the correct interpretation of s. 9(1) of the 1996 Act.

Held by the Court that, in a phrase such as that in issue in this case, a distinction must be kept in mind between words which have a statutory meaning such as a “director”, “secretary” and “other similar officer”, where the principle of ejusdem generis may apply, and a separate description word such as “manager”. The Court held that the latter must be construed, above all, in context: factors such as the nature of the legislation in question, and its object, purpose and intent, will be instructive; what is the liability being created and how, within the applicable rules of construction, can compliance with the underlying provision be implemented. The Court held that, in the absence of a statutory definition, a word such as “manager” will also be informed by the nature, business and activities of the relevant body corporate, and by his or her role within that body generally, and also being that specific to the impugned activity.

The Court held that, the legal point having been decided in favour of the DPP, it would leave open the question as to whether in addition to the direction being wrong in law, there was evidence adduced in the proceedings such that a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned, and whether there should be a re-trial. In those circumstances, the Court held that the making of a final order should be deferred until submissions had been heard from the parties on these matters.

Order deferred.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 28 ^th day of May, 2020

Introduction

1 On the 27 ^th October, 2015, following a trial in the Dublin Circuit Criminal Court presided over by His Honour Judge Patrick McCartan, the appellant, Mr. T.N., was acquitted, by direction of the learned trial judge, of nine charges under various provisions (sections 32(1), 6(a) and also 9(1)) of the Waste Management Act 1996 (“the 1996 Act”). The Director of Public Prosecutions then appealed to the Court of Appeal, pursuant to section 23(3)(b) of the Criminal Procedure Act 2010 (“the 2010 Act”), on the basis that the trial court had been wrong in law to direct a verdict of not guilty and that the evidence adduced in the trial had been such that a jury might reasonably have been satisfied beyond a reasonable doubt of the appellant's guilt in respect of the alleged offences. The relief sought reflected the wording of that subsection, and also subsections 23(11) and (12), pursuant to which a retrial of the respondent was prayed for.

2 The Court of Appeal (Birmingham J. (as he then was), Mahon and Edwards JJ. concurring) delivered two judgments in the matter: one on the 29 ^th January, 2018. in which the court found the trial judge had indeed erred in law, and a second on the 20 ^th June, 2018, in which, having heard further submissions from both parties, it quashed the acquittal and ordered a retrial. As can therefore be seen, the court considered the application in two parts: first, whether the trial judge had erred in the manner suggested and, if so, secondly, whether the direction should be quashed and a retrial ordered. The latter reflects the wording of section 23(11) of the 2010 Act. The appellant contended that it was appropriate for him to deal solely with the first issue in his oral and written submissions: only if and when the court found that the trial judge had indeed erred would it be possible to consider and make submissions on the second issue. The Court of Appeal accepted the merit in this argument, and it is for this reason that the issues were dealt with in separate judgments. The Court's decision of the 29 ^th January, 2018, and its order dated the 20 ^th June, 2018, which was perfected on the 24 ^th August, 2018, were the subject of the application for leave filed by the appellant.

3 Having considered both the application made and the notice of opposition filed in response, the following question was identified in the Determination of this Court as being appropriate for a further appeal ( [2018] IESCDET 200):

“Where, as in section 9(1) of the Waste Management Act 1996, a statute provides that where an offence ‘has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate’ then that person will also be liable similarly, what degree of responsibility is required to meet such a statutory definition?” (Emphasis added)

Therefore, the central issue is the correct interpretation of section 9(1) of the 1996 Act.

4 It is not necessary to give lengthy detail as to the evidence adduced before the Circuit Court over the course of the trial; however, it is helpful to provide context for the decisions which have been made thus far. As such, an overview of the factual background and the appellant's trial is necessary.

Factual Background

5 In order to grasp the main issue under consideration it is necessary to clearly set out the various actors at play in this appeal. Mr T.N. was one of two listed on the initial indictment (though this was changed at the outset of the trial: see paras. 9 and 10 below); the other was Jenzsoph Limited (“ Jenzsoph”). This company owned the lands where dumping and waste activity took place in Kerdiffstown, County Kildare but was not professionally represented and played no active role in the trial. The dumping and waste activity was carried out by Neiphin Trading Limited (“ Neiphin”) which occupied the facility on foot of a licence from Jenzsoph. Neiphin was a wholly-owned subsidiary of Dean Waste Limited, which operated from a premises in Dublin 24 and traded as A1 Waste. This company was in effect owned by a Mr. Tony Dean. Neither Neiphin nor Jenzsoph appeared to have any employees and Neiphin's commercial transactions were limited to intercompany transactions with Dean Waste.

6 As mentioned above, the site of the waste management facility in issue is situated at Kerdiffstown, County Kildare and is owned by Jenzsoph. The Environmental Protection Agency (“ the EPA”) issued two waste licences to Neiphin which were to govern the operation of the facility. The first was valid from the 22 ^nd October, 2003 until the 26 ^th September, 2006, and the second was valid from the 27 ^th September, 2006, until the 25 ^th November, 2008.

7 There are introductory words at the beginning of each waste licence which specifically state that they do not form part of the licence itself and are therefore not capable of being the subject of any legal significance or interpretation; however, the description given is instructive for our purposes in order to understand the nature of the business carried out by Neiphin at the facility:

“This licence is for the operation of an integrated waste facility consisting of a composting facility, a non-hazardous waste landfill, inert waste land-filling and infrastructure for the processing and recovery of commercial/industrial/household waste and construction and demolition waste at Kerdiffstown, Naas, County Kildare. The facility covers an area of approximately 30.6 hectares. It is a sand and gravel pit, which has a history of various extractive and...