DPP v T.N.

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IESC 53
• Court: Supreme Court
• Docket Number: S:AP:IE:2018:000134
• Date: 31 July 2020

IN THE MATTER OF S.23 OF THE CRIMINAL PROCEDURE ACT 2010

Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

AND

T.N.

Defendant/Appellant

[2020] IESC 53

O'Donnell J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley J.

S:AP:IE:2018:000134

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of O'Donnell J. delivered on the 31 ^st day of July, 2020.

1 On the 27 ^th of October, 2015, the appellant, T.N., was acquitted by direction of the trial judge on eight counts of breach of the Waste Management Act 1996 (“the 1996 Act”) relating to the operation of a landfill site at Kerdiffstown, County Kildare. The essential basis upon which the direction was granted related to the interpretation of s. 9 of the 1996 Act, and in particular the term “manager”. Section 9(1) of the 1996 Act, provides:-

“Where an offence under this Act 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, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence…”

2 The Director of Public Prosecutions (“D.P.P.”) appealed that decision to the Court of Appeal pursuant to s. 23(3)(b) of the Criminal Procedure Act 2010 (“the 2010 Act”) and the Court of Appeal concluded that the direction was wrong in law. In a further decision of the 20 ^th of June, 2018, the Court of Appeal ordered that the appellant, T.N., be retried on the charges. This court granted leave to appeal, and on the 28 ^th of May, 2020, (McKechnie J.; O'Donnell, Dunne, Charleton, and O'Malley JJ. Concurring ( [2020] IESC 26)) upheld the decision of the Court of Appeal that the ruling of the trial judge as to the interpretation of the term “manager” was erroneous. It is now necessary to consider whether the court should also uphold the decision of the Court of Appeal that the appellant should be retried on the offences with which he was charged.

3 It is clear that, in order to succeed in this appeal, the D.P.P., in addition to persuading the court that the direction made by the trial judge was wrong in law pursuant to s. 23(3)(b)(i) of the 2010 Act, must also satisfy the court that the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt pursuant to s. 23(3)(b)(ii) of the 2010 Act. In addition, before a court can order a re-trial, it must be satisfied that it is in the interests of justice to do so having regard to the matters set out at s. 23(12) of the 2010 Act. Section 23(12) provides as follows:-

“In determining whether to make an order under subsection (11) (a) [ that is to quash the acquittal and order a re-trial], the Supreme Court shall have regard to—

( a) whether or not it is likely that any re-trial could be conducted fairly,

( b) the amount of time that has passed since the act or omission that gave rise to the indictment,

( c) the interest of any victim of the offence concerned, and

( d) any other matter which it considers relevant to the appeal.” ( Italics in original.)

4 It follows from the foregoing that the two issues which must be considered on this application are whether the evidence satisfies the test in 23(3)(b)(ii) and whether it is in the interests of justice, having regard to the matter set out at s. 23(12), that there should be a re-trial.

Is the evidence such that a jury might reasonably be satisfied beyond a reasonable doubt of the guilt of the accused?

5 In this case, the offences alleged relate to the management and conduct of a landfill site between 2003 and 2008. Extensive evidence was given in the trial court, and each side has sought to lay emphasis upon different aspects of the evidence in support of their contentions. The question posed by s. 23(3)(b)(ii) is an unusual one for an appellate court, which did not hear the evidence in question, particularly in circumstances where the outcome of the court's deliberation may well result in a re-trial of the accused on that evidence. It is perhaps useful, therefore, to briefly place this particular limb of the Act in context.

6 The Criminal Procedure Act 2010 introduced into Irish law the concept of what is described as a “with prejudice” prosecution appeal to distinguish it from the “without prejudice” appeal that was, and remains, possible under the provisions of the Criminal Procedure Act 1967. The 2010 Act provides for a limited number of circumstances in which a statutory exception is made to the general and longstanding principle against re-trials after, or appeals against, acquittals. Under s. 8 of the 2010 Act, an application can be made for a re-trial, notwithstanding an acquittal, where there is “new and compelling evidence against a person…in relation to the relevant offence concerned” and “it is in the public interest to do so”. This will often occur where new evidence has emerged as a result of advances in forensic science and, in particular, D.N.A. testing. Section 9 permits a re-trial following an acquittal, in circumstances where there is, again, “compelling evidence” against the person concerned and it is in the public interest to do so and where, subsequently, the person or another person has been convicted of an offence against the administration of justice relating to the proceedings which resulted in the acquittal. These are described as tainted acquittals. Section 23 contemplates the possibility of an appeal against an acquittal where the case has either been terminated by a ruling made by a trial judge (which is the subsection invoked here) and where it is contended that such a ruling is erroneous in law or, under s. 23(3)(a), where a ruling has been made excluding evidence (again described as “compelling”) which is alleged to be erroneous and which, nevertheless, has the effect of leading to an acquittal. Compelling evidence for such purposes is defined by s. 23(14) as evidence which:-

“( a) is reliable;

( b) is of significant probative value, and

( c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.”

7 As the Act at least implicitly acknowledges, these four instances are exceptions to a long-established principle of the common law that an acquittal, whether by decision of a jury or in direction of a trial judge at a trial, is final and gives rise to the well-known plea in bar of autrefois acquit, also known as the rule against double jeopardy. The rationale of the Act appears to be that, in certain limited circumstances, the interests of justice may require that cases which have terminated in acquittal, and even in the acquittal by verdict of a jury – which has always had a particular force and sanctity in the common law – should nevertheless be reopened, either because developments in science have produced evidence of overwhelming force and cogency, or that the acquittal was tainted and cannot be said to have been arrived at after a trial in due course of law. The Act also recognises that the laws of crime and evidence have become increasingly complex and that there may be many rulings of a trial judge, nearly always made under significant pressure of time, which may have the effect of terminating prosecutions before they can be the subject of an adjudication by a jury. Apart from the consequences of the particular trial, such rulings may be based upon, or themselves create, precedents that can have a wide-ranging impact on the enforcement of the law and which, if erroneous, ought to be corrected. The Act therefore seeks, it appears, to balance the public interest in permitting certain re-trials and prosecution appeals with a recognition that such circumstances are an exception to a general and important rule on the finality of acquittals in criminal trials.

8 Section 23(3)(b) requires the court to consider if the evidence adduced before the trial is such that a jury might reasonably be satisfied beyond a reasonable doubt of the guilt of the accused. This does not, on its face, involve the more complex question of considering whether any such evidence can be said to be compelling which involves an assessment by an appellate court of reliability and significant probative value. In this...