The People (Director of Public Prosecutions) v A. McD
 IESC 71
THE SUPREME COURT
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 23 OF THE CRIMINAL PROCEDURE ACT 2010
Evidence – Re-trial – Burglary – Appellant seeking re-trial – Whether trial judge erroneously excluded compelling evidence
In early 2014, at Dublin Circuit Criminal Court, the accused/respondent was found not guilty by a jury, on a direction of the trial judge, in respect of the following three offences, namely:-
(1) Count 1 – Burglary:
that on the 19th August, 2011, he entered the building known as the car park of a certain apartment complex in the inner part of Dublin City (identified by name and location in the indictment) as a trespasser and did commit an arrestable offence to wit: arson, contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001;
(2) Count 2 – Endangerment:
that on the same occasion and at the same place he intentionally or recklessly engaged in conduct to wit: the setting alight of a particular motor vehicle, which created a substantial risk of death or serious harm to another, contrary to section 13 of the Non-Fatal Offences Against the Person Act 1997; and
(3) Count 6 – Arson:
that again on the same occasion and at the same place he did, without lawful excuse, damage certain specified property by fire, intending to damage the same or being reckless as to whether such property would be damaged, contrary to section 2(2) of the Criminal Damage Act 1991.
A nolle prosecui was entered in respect of the other counts on the indictment.
The DPP took objection to the preceding evidential rulings which directly led to the non-guilty verdicts being returned. She decided to invoke the provisions of section 23 of the Criminal Procedure Act 2010 (‘the 2010 Act’), so as to appeal to this Court from the rulings so made. In broad terms she claims that the learned trial judge, in acceding to the applications made on behalf of the then accused person, erroneously excluded ‘compelling evidence’ within the meaning of section 23(3)(a) and (14) of the said 2010 Act. That evidence was twofold in nature: first, certain CCTV footage which the trial judge ruled inadmissible during the course of a voir dire; and, secondly, a certain memorandum of interview which was excluded, when the issue of its admissibility arose, on the basis that the provisions of section 19 of the Criminal Justice Act 1984 had been wrongfully invoked and that there was therefore a doubt as to whether the accused person's responses in the interview had been given voluntarily. As there was no further evidence of value against the accused, the trial judge directed the jury accordingly. As this is a ‘with prejudice’ appeal, the DPP also seeks to have the accused re-tried for the offences above described.
At approximately 9.10pm on the 19th August, 2011, a number of gardaí, in response to a call from a member of the public, arrived at the apartment complex in question. One such member, whom I shall call Garda Smith, observed a male, now known to be the respondent, on the inside of a gate to the car park underneath the apartment building. He was attempting to open the gate, but was unable to do so. He acknowledged that he was not a resident in the apartment block and said that he was simply trying to get out. At that point, Garda Smith, who earlier had been conscious of smelling smoke, observed that a car was on fire within the car park itself.
A short time thereafter, the accused was arrested and subsequently detained pursuant to section 4 of the Criminal Justice Act 1984 (‘the 1984 Act’), which detention was extended once in accordance with the provisions of that section. During this detention, in which a number of items of his clothing were taken for examination, the accused was interviewed on three occasions. Nothing of evidential value derived from the first two interviews; during the third, however, he accepted that he was at the scene of the crime and that he was a trespasser on the premises in question, but denied that he had any responsibility for setting fire to the vehicle. He was released without charge at 12.30pm on the 20th August, 2011.
On the 24th August, 2011, Garda Smith obtained CCTV footage which appeared to show the incident in the car park and a man setting fire to the motor vehicle. He believed that this was the same man as the person he had first encountered on arriving at the complex. Sometime afterwards he obtained a piece of forensic information regarding the presence of petrol vapour on a petrol cap found beside the burned out car. Armed with this new evidence, Garda Smith obtained, on the 14th November, 2011, a warrant under section 10 of the 1984 Act, which authorised the re-arrest of the accused in the context of this incident. That warrant was executed some two days later.
On the 16th November, 2011, the accused, having been re-arrested, was interviewed on a number of occasions, one of which features heavily in this case. Thereafter he was charged with certain offences arising out of the incident above described, including the three specific charges set out at para. 1, supra. On arraignment, pleas of not guilty were entered in respect of all such charges. The essential evidence upon which the DPP proposed to rely at trial was the CCTV footage of the incident, as well as a memorandum of the third interview conducted on the 16th November, 2011, (sometimes referred to as the ‘section 19 interview’). In effect, as events show, without this evidence there was no other basis which could possibly justify a continuation of the prosecution.
The trial of the accused commenced before Her Honour Judge Berkeley in early 2014. At the outset of the hearing, after the jury had been sworn in but before counsel's opening address, the trial judge agreed to hear and determine an objection to the admissibility of the said CCTV footage, and for that purpose embarked upon a voir dire. Subsequent to her ruling on that issue (para. 17, infra), the case proceeded on the further evidence available until Day 3 of the trial, when objection was made to the admissibility of the said memorandum on the basis that section 19 of the 1984 Act, as substituted by section 29 of the Criminal Justice Act 2007, had been wrongly invoked. Consequently there were two discrete admissibility rulings made at the trial which remain, apart from the procedure adopted, the essential issues on this appeal. One can perhaps add a third, which is that even if the section 19 objection is a good one, does this automatically render the resulting statement involuntary. Finally, depending on this Court's decision on these points, the consequential issue of a re-trial may also have to be considered. First, however, a reference to the statutory provision by which the case has arrived at this Court.
By Notice of Appeal dated the 4th March, 2014, the DPP, in the grounds of appeal, described her challenge, inter alia, as relating to:-
‘1. A Ruling made by the Trial Judge [which] erroneously excluded compelling evidence of the guilt of the Accused (within the meaning of Section 23(14) of the Criminal Procedure Act 2010), namely CCTV footage allegedly showing the Accused in the act of committing the offences with which he was charged.
2. A Ruling made by the Trial Judge [which] erroneously excluded compelling evidence of the guilt of the Accused (within the meaning of Section 23(14) of the Criminal Procedure Act 2010), namely evidence of Replies made by the Accused in the course of interview.’
As is therefore quite evident, the vehicle by which the instant appeal is moved is rooted on that nominated provision of the 2010 Act.
Section 23 of that Act, which provides for the possibility of a ‘with prejudice’ prosecution appeal by the DPP (or, where appropriate, the Attorney General) in certain criminal proceedings, states as follows:-
‘23.— (1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director … may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
(3) An appeal under this section shall lie only where—
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) … which erroneously excluded compelling evidence or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—
(i) the direction was wrong in law, and
(ii) 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 in respect of the offence concerned.’ (Emphasis added)
Section 23(14) defines the term ‘compelling evidence’ as meaning evidence which:
‘(a) is reliable,
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