The Director of Public Prosecutions v JS

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 11 July 2025
• Neutral Citation: [2025] IESC 32
• Docket Number: S:AP:IE:2024:000012

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

J.S.

Appellant

[2025] IESC 32

O'Donnell C.J

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

S:AP:IE:2024:000012

36CJA/2023

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Acquittal – Drug offences – Retrial – Appellant seeking affirmation of an acquittal – Whether evidence was erroneously excluded

Facts: The appellant was charged with six offences contrary to the Misuse of Drugs Act 1977. The jury returned verdicts of not guilty. The respondent, the Director of Public Prosecutions (the DPP), appealed to the Court of Appeal, in reliance on s. 23 of the Criminal Procedure Act 2010. Having heard the parties’ submissions, the Court ordered a retrial. The appellant appealed to the Supreme Court. The appeal concerned the decision of the trial judge to exclude certain admissible evidence against the appellant on the ground that it was more prejudicial than probative. The trial continued to a jury verdict and the appellant was acquitted. The first question to be determined by the Court was whether, in a case where the trial has proceeded and the accused has been acquitted by a jury after a ruling of this nature, the DPP may bring a “with prejudice” appeal against the acquittal; prosecution appeals against acquittals are provided for in s. 23(1) of the Criminal Procedure Act 2010 and must concern a point of law. In this appeal, the Court of Appeal rejected the argument put forward on behalf of the appellant to the effect that the decision of the trial judge, being an exercise of judicial discretion, did not concern a point of law and was therefore not amenable to an appeal by the prosecution under the section. The Court held that such an appeal lay, and went on to hold that the excluded evidence should have been admitted. The DPP’s appeal was allowed, and a retrial was directed. The second question was whether, if it was correct to entertain the appeal, the Court was also correct in finding that the evidence in question was erroneously excluded in the circumstances of the case. If that ruling was correct, a third question would arise, as to whether it was correct to allow the appeal and order a retrial.

Held by the Supreme Court that a prosecution appeal against a ruling of this nature is not excluded under the terms of s. 23 of the 2010 Act. The Court was prepared to hold that the evidence was erroneously excluded in that the trial judge did not adequately analyse its potential probative value as opposed to its prejudicial effect. The Court held that the evidence was “compelling”, not in the sense of compelling a verdict of guilt but in the sense of the statutory definition. The Court had previously commented (in, e.g., People (DPP) v JC [2017] 1 IR 417) on the potential difficulties for an appellate court in applying the s. 23(14) criteria but in this case they were relatively straightforward. The Court found that the evidence was unquestionably reliable in that what was sought to be proved was, primarily, the fact that the appellant had formally pleaded guilty to the relevant charges. The Court held that it was of sufficiently probative value that, taken with the other evidence in the case, a jury could reasonably have reached a verdict of guilt.

The Court held that the DPP had not shown that there was any feature of the case such that a retrial was in the interests of justice. In the circumstances, the Court allowed the appeal, set aside the order of the Court of Appeal and affirmed the acquittal.

Appeal allowed.

Judgment of Ms Justice Iseult O'Malley delivered the 11 ^th day of July 2025

Introduction

1 This appeal concerns the decision of a trial judge to exclude certain admissible evidence against the appellant on the ground that it was more prejudicial than probative. The trial continued to a jury verdict and the appellant was acquitted. The first question to be determined by the Court is whether, in a case where the trial has proceeded and the accused has been acquitted by a jury after a ruling of this nature, the Director of Public Prosecutions may bring a “with prejudice” appeal against the acquittal.

2 Prosecution appeals against acquittals are provided for in s.23(1) of the Criminal Procedure Act 2010, as amended, and must concern a point of law. In this appeal, the Court of Appeal rejected the argument put forward on behalf of the appellant to the effect that the decision of the trial judge, being an exercise of judicial discretion, did not concern a point of law and was therefore not amenable to an appeal by the prosecution under the section. The Court held that such an appeal lay, and went on to hold that the excluded evidence should have been admitted. The Director's appeal was allowed, and a retrial was directed.

3 The second question is whether, if it was correct to entertain the appeal, the Court was also correct in finding that the evidence in question was erroneously excluded in the circumstances of the case.

4 If that ruling was correct, a third question arises, as to whether it was correct to allow the appeal and order a retrial.

Factual Background

5 On the 1 ^st November 2018, a customs and excise officer came into possession of a package, sent through the post, which proved to contain a quantity of a controlled substance. (The substance was particularised in the indictment as methylamphetamine but generally referred to by its more common synonym methamphetamine). The street value was put at approximately €6,000. The package was addressed to the appellant's co-accused, using that person's second given name and surname, at an address where the two of them resided with three other persons. Both the appellant and the co-accused are Polish nationals, and the package was posted in Poland.

6 A controlled delivery of the package was made to the address on the 2 ^nd November 2018, carried out by a member of the Garda Síochána posing as a postman. The door was answered by a female who was asked whether the co-accused resided there. She indicated that she would check.

7 The garda's evidence was that the appellant then came to the door and, when asked whether he was the person named on the package, identified himself as such and signed for the package using that name. The evidence about what the appellant said, and about the signature, was subsequently the subject of dispute. He claimed, when later questioned by gardaí, that he had not been asked whether he was the person to whom the package was addressed, but only whether the address was correct. He said that he had signed his own name, while the prosecution contended that the signature could be read as his co-accused's middle, or second, given name.

8 After the appellant had accepted the package gardaí searched the premises, having already obtained a warrant for that purpose. The co-accused arrived at the house about 15 minutes later. In the appellant's bedroom the gardaí found suspected cannabis, suspected amphetamine, glass pipes, plastic bags, a number of phones, a grinder, a laptop and other items. The quantity of cannabis found in the room was sufficient to give rise to a presumption under s.15 of the Misuse of Drugs Act 1977, as amended, that it was not for personal use but was intended for sale or supply to others.

9 In the co-accused's bedroom gardaí found electronic scales, small plastic bags, cannabis, suspected crack cocaine and a quantity of amphetamine sufficient to give rise to a presumption under s.15.

10 The total street value of the suspected controlled drugs found in the house was a little under €2,000.

11 During interview, the appellant admitted that the items found in his bedroom were his but denied having them for sale, claiming that they were for his personal use. He denied that the package was his.

The trial

12 The appellant and the co-accused were each charged with six offences contrary to the Misuse of Drugs Act 1977, as amended. The charges were: possession of cannabis contrary to s.3 (count 1); possession of cannabis with intent to supply contrary to s. 15 (count 2), possession of amphetamine contrary to s.3 (count 3), possession of amphetamine with intent to supply contrary to s.15 (count 4), possession of methylamphetamine contrary to s.3 (count 5), and possession of methylamphetamine with intent to supply contrary to s.15 (count 6). The appellant entered a guilty plea on count 2 on an early arraignment date, some two years before the trial, and a further guilty plea to count 4 on the morning of the trial. As is normal in such circumstances, pleas were not required on the lesser counts 1 and 3 (the two s.3 offences relating to the substances found in the bedroom) and so the trial proceeded in respect of counts 5 and 6 only. The charges that required to be decided upon by a jury at that stage, therefore, related only to the package and not to what was found in the search of the house. The case made by the prosecution was that the appellant and the co-accused had been engaged in a joint enterprise and that the appellant, in receiving the package on behalf of his partner in the enterprise, had demonstrated that he was acting in concert with him.

13 The trial commenced on the 16 ^th January 2023. (The reasons for this considerable lapse of time are not clear but it can perhaps be assumed that the Covid 19 pandemic contributed.) The prosecution proposed to adduce evidence before the jury of the fact that the appellant had pleaded guilty to the two s.15 charges in respect of the cannabis and amphetamine found in his bedroom. Counsel argued that there was clear evidence of a joint enterprise, such that evidence of what was found in each bedroom was evidence against each of the two accused. He submitted that the evidence was also relevant to the assessment of the appellant's state of knowledge at the time when he accepted the package and used the co-accused's name.

14 ...