The People (Director of Public Prosecutions) v Dekker

• Jurisdiction: Ireland
• Judge: Ms. Justice Elizabeth Dunne
• Judgment Date: 16 June 2015
• Neutral Citation: [2015] IESC 107
• Docket Number: [S.C. No. 336 of 2013],[Appeal No. 336/2013]
• Court: Supreme Court
• Date: 16 June 2015

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 23 CRIMINAL

PROCEDURE ACT 2010

BETWEEN

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

PROSECUTION AUTHORITY /APPELLANT

AND

RICHARD DEKKER

ACCUSED

[2015] IESC 107

Dunne J.

Denham C.J.

Hardiman J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

[Appeal No. 336/2013]

Bill No. CC0033/12

THE SUPREME COURT

Murder – Accessory – Acquittal – Appellant seeking to appeal to the Supreme Court from an order of the High Court – Whether the High Court was correct in ruling that the prosecution case taken at its highest was such that a properly directed jury could not properly convict the accused of murder of the deceased on the grounds that he was an accessory

Facts: The appellant, the DPP, appealed to the Supreme Court from an order of the High Court sitting as the Central Criminal Court finding the accused, Mr Dekker, "not guilty by direction of the trial judge". The appeal was brought pursuant to s. 23 of the Criminal Procedure Act 2010. The question of law raised in this appeal was as follows: "Was the Central Criminal Court correct in ruling that the prosecution case taken at its highest was such that a properly directed jury could not properly convict the accused of murder of the deceased on the grounds that he was an accessory?" The notice of appeal sought the following determination and orders: (a) A determination that the court of trial erroneously directed the jury to acquit the accused; (b) An order that the subsequent acquittal be quashed; (c) An order that the accused be re-tried in respect of all charges. The grounds relied on in the notice of appeal were as follows: A direction was given by the court of trial during the course of the trial of the accused, directing the jury in the trial to find the accused not guilty where: (1) the direction was wrong in law; and (2) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the guilt of the accused in respect of the offence concerned.

Held by the Court that insofar as the question of the extent of the application of the decision in R v Rahman and Ors [2008] 3 WLR 264 was concerned it was satisfied that it clarifies the law in relation to the mental element required to establish the liability of an accessory involved in a joint enterprise in relation to murder; accordingly, if an accessory assists the principal knowing that the principal is proposing to carry out an assault and that the principal is armed with a lethal weapon, then, the accessory ordinarily will be understood to have known or foreseen that the principal intended to seriously injure or kill the victim of the assault. However, the Court was not of the view that R v Rahman is authority for the proposition that the mens rea required for an accessory to murder is something less than that required of a principal under s. 4 of the Criminal Justice Act 1964; the mens rea of the accessory and the principal may not be identical but provided each has the requisite intention required under s. 4, then, in each case, they would be liable for murder.

The Court held that, having regard to the matters in relation to the decision of the trial judge to direct the jury to acquit the accused, it would allow the appeal, quash the acquittal of the accused and direct that the accused be re-tried.

Appeal allowed.

Judgment of Ms. Justice Elizabeth Dunne delivered the 16th day of June, 2015

1 This is an appeal from an order of the High Court sitting as the Central Criminal Court finding the accused 'not guilty by direction of the trial judge'. The appeal was brought pursuant to s. 23 of the Criminal Procedure Act 2010 which provided for the first time an appeal 'with prejudice' from an acquittal by direction of the trial judge to the Supreme Court on a question of law. Section 23 of the 2010 Act provides, inter alia, as follows:

'(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, 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.

(2) Where on or after the commencement of this section, a person's conviction of an offence on indictment is quashed on appeal by the Court of Criminal Appeal and that Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Criminal Appeal not to order a re-trial 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) or the hearing of an appeal referred to in subsection (2), as the case may be, 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.'

2 Section 23 goes on to provide as follows:

'(11) On hearing an appeal under this section the Supreme Court may –

(a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied –

(i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

or

(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.

(12) In determining whether to make an order under subsection (11)(a), 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.

(13) (a) The Supreme Court may make an order for a re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.

(b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.'

3 It can be seen therefore that an appeal now lies from an acquittal by direction of the trial judge to the Supreme Court on a question of law. The question of law raised in this appeal is as follows:

'Was the Central Criminal Court correct in ruling that the prosecution case taken at its highest was such that a properly directed jury could not properly convict the accused of murder of the deceased on the grounds that he was an accessory?'

Background

4 Daniel McAnaspie was a young person aged seventeen years and was in the care of the HSE. On the evening of the 25th February, 2010, he was allowed out to visit with friends by his carers but he failed to return to his carers. He was last seen alive at approximately 4am on the morning of the 26th February, 2010. Unfortunately, his remains were found on the 13th May, 2010. Ultimately, the accused in this appeal and one Trevor Noone, the last people to be seen with Daniel McAnaspie, were charged with his murder.

The notice of appeal

5 The notice of appeal seeks the following determination and orders:

'(a) A determination that the court of trial erroneously directed the jury to acquit the above named accused.

(b) An order that the subsequent acquittal be quashed.

(c) An order that the above named accused be re-tried in respect of all charges.'

6 The grounds relied on in the notice of appeal are as follows:

'A direction was given by the court of trial during the course of the trial of the said accused, directing the jury in the trial to find the said accused not guilty where:

(1) the direction was wrong in law; and

(2) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the guilt of the said accused in respect of the offence concerned.'

7 The notice of appeal summarised the principal evidence against the accused as follows:

'(1) Daniel McAnaspie, the deceased, was seventeen years of age (date of birth 13th November, 1992) and in the care of the HSE. He was last seen alive at approximately 4am on the 26th February, 2010 outside a house at Whitestown Avenue Blanchardstown in the company of two men, the accused, Richard Dekker, and another man, Trevor Noone. He had been allowed out to visit with friends by his carers on the previous evening but failed to keep an appointment to return to their care.

(2) His failure to return was reported to An Garda Síochána and a missing person investigation began. The accused gave a witness statement to the Gardaí on the 3rd March, 2010 and further was interviewed by the Gardaí at his home on the 7th March, 2010. On both occasions he lied and told Gardaí that he had left Daniel McAnaspie, the deceased, on Whitestown Avenue on the night of his disappearance.

(3) On the...