The People (Director of Public Prosecutions) v J.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 22 June 2015
• Neutral Citation: [2015] IESC 50
• Court: Supreme Court
• Docket Number: [Appeal No. 398/2012],[S.C. No. 398 of 2012]
• Date: 22 June 2015

IN THE MATTER OF THE CRIMINAL PROCEDURE ACT 2010,

SECTION 23

Between /

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

Appellant

-and-

MR. C.

Respondent

[2015] IESC 50

McKechnie J.

Denham C.J.

Murray J.

Hardiman J.

O'Donnell Donal J.

McKechnie J.

Clarke J.

MacMenamin J.

[Appeal No. 398/2012]

THE SUPREME COURT

Criminal Procedure - Acquittal - Exclusionary rule - Appellant seeking a retrial of the respondent - Whether it was in the interests of justice to quash the acquittal

Facts: The appellant, the DPP, appealed to the Supreme Court for a decision on the interpretation and application of s. 23(11) and (12) of the Criminal Procedure Act 2010, as to whether, in the circumstances of the case, the acquittal of the respondent should be quashed. At issue was whether an appeal lay under s. 23 of the Act of 2010, and whether the issue of the exclusionary rule could be raised under s. 23 of the Act of 2010. In April, 2015, the Court applied a new test to the facts of the case and was satisfied that the evidence in question should be admitted. Thus, it was held that, while the trial judge was bound by The People (Director of Public Prosecutions) v Kenny [1990] 2 IR 110, nevertheless she erred in her decision to exclude the evidence in the sense of the term in s. 23 of the Act of 2010. The appellant submitted that it was in the interests of justice, in all the circumstances of the case, that there be a retrial of the respondent. The respondent submitted that it was not in the interests of justice to quash the acquittal and direct a retrial. While the appellant had won the appeal on the substantive issues, the Court then had to decide on the order to be made under s. 23(11) and (12). It was submitted by the respondent that persons who have been acquitted at trial ought not to be exposed to a possible retrial simply because of the mode of appeal chosen by the prosecution. It was submitted that s. 23(11) and (12) properly interpreted must provide an appropriate safeguard against the possibility of cases being selected for retrial on an arbitrary basis, as s. 34 of the Criminal Procedure Act 1967 remains in force, and is an option for the DPP, and indeed has been invoked since s. 23 of the Act of 2010 came into force. The respondent submitted that in considering whether it is in the interests of justice to quash the acquittal, the appellant must demonstrate good reason, based on the circumstances, to quash the acquittal; this might include matters such as the nature of the offence, the circumstances of its committal, any aggravating factors, and the impact of the alleged offence on victims.

Held by Denham CJ that there were several specific factors to be considered under s. 23(12). The first factor was the amount of time that had passed since the act or omission that gave rise to the indictment. The jurisprudence relating to prohibiting trials on grounds of delay was not considered relevant in construing and applying this section; this was a �time� issue to be considered by the Court in all the circumstances of the case. In this case four years had elapsed since the alleged offences, and three years since the appellant�s acquittal in the Circuit Court. Denham CJ also considered whether there were any other relevant matters; there was no doubt that the Court�s overturning of a previously binding precedent (Kenny) was a factor.

Denham CJ held that, given the fact that (i) the case has changed the law, as previously stated in Kenny; ii) if the respondent were re-tried, he would be subject to the new legal principles relating to the exclusion of evidence in search warrant cases, contrary to the situation on his earlier trial; (iii) three years have passed since the respondent was acquitted; (iv) there was no specific evidence before the Court as to impact on victims of crime; and (v) the fact that the appellant chose this mode of appeal should not give rise automatically to a re-trial on the success of the substantive issues raised; in all the circumstances, in the interests of justice, the Court would affirm the acquittal of the respondent, and consequently would not order that the respondent be re-tried for the offences.

Appeal dismissed.

JUDGMENT (No.2) of Mr. Justice William M. McKechnie delivered on the 22nd day of June, 2015

Introduction

1 As explained in my judgment delivered on the 15th April, 2015 ('the main judgment'), the Director of Public Prosecutions ('the DPP') has for many years expressed dissatisfaction with the decision of this Court in The People (DPP) v. Kenny [1990] 2 I.R. 110 (' Kenny'). Occasionally in the intervening period she has sought to have the principles outlined in that judgment stood down by this Court (see, for example, DPP (Garda Walsh) v. Cash [2010] 1 I.R. 609), with the latest such occasion being the instant case. For this purpose the statutory vehicle which she has used is section 23 of the Criminal Procedure Act 2010 ('section 23 of the 2010 Act').

2 Arising out of the Notice of Appeal served under that section, a number of issues were raised which gave rise to the judgments previously delivered by several members of the Court in April of this year ( [2015] I.E.S.C. 31). The first related to the validity of the respondent's arrest in the circumstances in which that occurred; this can be considered as a discrete point and is not material to the remaining issue which forms the subject matter of this, the second judgment in the case. The second ground of appeal was the launching of a frontal assault on Kenny, with this Court being invited, if it should agree with the submissions advanced in support thereof, to replace the Kenny principles with some new form of test more accommodating to her wishes. This was considered to be the most substantive basis of the DPP's appeal. To achieve this end, however, it was necessary for her to establish that the provisions of section 23 of the 2010 Act applied to the circumstances of the case. That issue, as it turned out, took on an importance of its own and became the focus of quite a significant debate and a searching analysis involving both individual and collective components of the section.

An Error of Some Significance

3 For the reasons set out in the main judgment, which are again briefly referred to in this judgment, I took the view that as the key purpose of the section was to secure a re-trial of the respondent, who previously had been acquitted of all charges laid against him, it was not possible for this Court to resolve the Kenny controversy without being satisfied that such a re-trial was appropriate. Therefore, it self-evidently followed that both issues would have to be determined at the same time.

4 Unfortunately, however, prior to the commencement of the substantive hearing, it was agreed - without much, if indeed any, debate - that the question of a re-trial would be left standing until the other issues had been determined. As the hearing progressed and certainly as I began to deliberate on matters for the purposes of the main judgment, it became clear to me that this was a significant error. In light of the Court's view on the question of a re-trial, the major concerns with the section which I envisaged even at that stage, as set out in the main judgment, have become a reality. In my view, the resulting situation should never have been permitted to occur, much less have been accommodated, even if inadvertently so, by the approach of this Court.

Section 23 of the 2010 Act

5 In the main judgment I concluded, after a detailed examination of Part 3 and Part 4 of the 2010 Act, that section 23 of the Act, in both its terms and its practical application, is dysfunctional. In light of the submissions made, and having regard to the exchanges had during the hearing on the re-trial aspect of this appeal, I am satisfied to the highest level of certainty that the section is functionally unworkable, utterly inoperable and entirely misguided in both its conception and placement. Despite this view, for so long as the section remains on the statute book, the courts may be constrained by necessity to give it some utility, as the type of forensic examination conducted in this and in the main judgment may not be requested in all cases.

6 Subject to subsection (3) and section 24, the DPP (or the Attorney General, as may be appropriate) may appeal to the Supreme Court under section 23 of the 2010 Act on a question of law arising out of the acquittal of a person tried on indictment before any court of competent jurisdiction. That subsection is of significance, as are subsections (11) and (12), and they thus require to be outlined. Such provisions read as follows:

'23.'(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.

(11) On hearing an appeal under this subsection 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...