Supreme Court allows DPP appeal on point of law but affirms acquittal, denying retrial due to lack of public interest.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[2025] IESC 32

S:AP:IE:2024:000012

36CJA/2023

Between/

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

Respondent

– AND –

J.S.

Appellant

O’Donnell C.J

O’Malley J. Woulfe J. Hogan J. Murray J.

Judgment of Ms Justice Iseult O’Malley delivered the 11th 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 1st 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 2nd 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 16th 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. The defence objected, indicating that there was a dispute about the evidence that the appellant had identified himself as the co-accused and had signed in that name. It was argued that the proposed evidence relating to the pleas on the other counts would be highly prejudicial. The case made was that the evidence would, in effect, tell the jury that the accused person was a drug dealer, while it would not be probative of anything in relation to the package.

15. In her ruling the trial judge observed that the case, as it now stood, related to the discovery of the methylamphetamine in the package and that the issue centred on the disputed evidence related to the controlled delivery. In those circumstances she considered that the prejudicial effect of evidence of the guilty pleas relating to the drugs found in the room would outweigh its probative value in relation to the matter at issue, and that accordingly such evidence should not be admitted.

16. Prosecution counsel then sought to have the appellant arraigned on the two s.3 charges. His position was that if the appellant pleaded not guilty on those counts, the prosecution would be entitled to give evidence of the controlled substances found in the course of the search, without referring to counts 2 and 4. If, on the other hand, the appellant were to plead guilty, the jury would at least be aware of that plea. He again argued that this would be highly relevant to the state of mind of the appellant when he received the package. The defence submitted that this would be the same as leading evidence of previous convictions, and repeated that the case was only about the controlled delivery. The trial judge clarified that her earlier ruling covered any such evidence. There was to be no mention of the drugs found in the bedrooms or of the appellant’s guilty pleas relating thereto.

17. The trial, accordingly, proceeded on that basis. There was no reference to the drugs found in either the appellant’s room or that of the co-accused.

18. In closing his case, counsel for the prosecution told the jury that if they accepted the garda evidence that the appellant had identified himself as the person to whom the package was addressed then their task would be simple. The prosecution accepted that the signature was “not great” and “not very clear”, but argued that it looked more like the co-accused’s middle name than the appellant’s name. Counsel for the defence argued that it was common for people to sign for packages addressed to family members and housemates. He emphasised the fact that the appellant had cooperated and had answered garda questions, while the co-accused had not turned up for trial.

19. The jury returned verdicts of not guilty. The prosecution appealed to the Court of Appeal, in reliance on s.23 of the Criminal Procedure Act 2010.

20. In the meantime, after the trial the appellant was sentenced to twelve months imprisonment, suspended for two years, in respect of the drugs found in his bedroom.

Relevant Legislation

21. Section 23 of the Criminal Procedure Act 2010, as amended, provides in relevant part:

‘23.— (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— (I) the Court of Appeal, or (II) in the case of a person who is tried on indictment in the Central Criminal Court, the Court of Appeal or the Supreme Court under Article 34.5.4° of the Constitution.

(2) [Provides for an appeal by the Director against a refusal of the Court of Appeal to direct a retrial]

(3) An appeal referred to in this section shall lie only where—

(a) a ruling was made by a court—

(i) during the course of a trial referred to in subsection (1),

(ia) during the course of a preliminary trial hearing within the meaning of the Criminal Procedure Act 2021 which was not appealed under section

7 of that Act, or

(ii) during the hearing of an appeal referred to in subsection (2), 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) (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.’

(4) [The appeal must be on notice to the accused.]

(5) [The appellate court may proceed to hear the appeal in the absence of the accused.] (6), (7), (8), (9) and (10) [Provision for legal representation and legal aid.]

(11) On hearing an appeal referred to in subsection (1) the Court of Appeal may—

(a) quash the acquittal and order the person to be re-tried for the offence concerned if it is satisfied—

(i) that the requirements of subsection (3)(a)(i) or (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. (11A) On hearing an appeal referred to in this section, the Supreme Court may—

(a) quash the acquittal or reverse the decision of the Court of 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 (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 Appeal, as the case may be.

(12) In determining whether to make an order under paragraph (a) of subsection (11) or (11A), the Court of Appeal or the Supreme Court, as the case may be, 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 Court of Appeal or the Supreme Court, as the case may be, may make an order for a re-trial 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.

(14) In this section—

"compelling evidence", in relation to a person, means evidence which—

(a) is reliable,

(b) is of significant probative value, and

(c) is such that, when taken together with—

(i) all the other evidence adduced in the proceedings concerned, and

(ii) to the extent that such evidence has not been adduced, the relevant evidence proposed to be adduced in the proceedings, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned; "relevant evidence", in relation to a person, means the proposed evidence—

(a) contained in such of the following as have been served on the person or his or her solicitor pursuant to section 4B or 4C of the Act of 1967:

(i) the documents specified in section 4B(1)(b) of that Act;

(ii) exhibits listed in the list of exhibits referred to in section 4B(1)(b)(vii) of that Act;

(iii) the documents specified in section 4C(1) of that Act;

(iv) the exhibits referred to in the list of exhibits referred to in section 4C(1)(g)

of that Act,

or

(b) given in a videorecording of an interview made under section 16(1) of the Act of 1992, in relation to which the accused has been notified and given an opportunity of seeing the videorecording in accordance with section 15(1) of that Act.

22. Section 24 provides that no further appeal by the prosecution shall lie if the accused is acquitted in the retrial.

23. The appeal in this case is focussed, in the first instance, on s.23(1) – an appeal must be on a point of law. The second issue raises the effect of s.23(3)(a)(i) and s.23(14) – was the ruling one which erroneously excluded compelling evidence? The third issue – whether the Court should quash the acquittal (i.e., in this case, dismiss the appeal) and affirm the order for a retrial – depends on whether the Court is satisfied that the ruling erroneously excluded compelling evidence and also considers, having taken into account the matters referred to in the subsection and any other relevant consideration, that it is in the interest of justice to order a retrial.

The Court of Appeal

24. In her appeal the Director of Public Prosecutions contended that the ruling of the trial court had erroneously excluded evidence that came within the definition of “compelling evidence” in s. 23(14). It is recorded in the judgment that the appellant contended that the appeal was founded on a misconception by the prosecutor. He argued that the trial judge’s ruling did not extend to the exclusion of all the items found in his bedroom, but merely to evidence relating to the pleas and to the drugs concerned in those pleas. The Court of Appeal noted that experienced prosecuting counsel understood the ruling to include all relevant evidence from the search and it accepted that this was the understanding relied upon in the trial. In the Court’s view it was necessary to decide on the admissibility of evidence of the pleas and the drugs in any event.

25. The Court referred to the question whether, in principle, the exercise by a trial judge of a discretion to exclude what would otherwise be admissible evidence could constitute an “error” for the purpose of s. 23(3). It observed that the trial judge had not made the error of finding the evidence to be inadmissible per se. While no authority had been opened on the point, the Court stated that it appeared that any ruling on admissibility (whether involving a discretion or not) was per se a ruling of law which could give rise to an appeal under s. 23 of the 2010 Act.

26. As recorded in the judgment, the first argument of significance put forward by the prosecution was that the evidence of the items found in the bedroom was admissible, not as evidence of previous bad conduct by the appellant, but as evidence of offences which were committed by him contemporaneously with the offence for which he was being tried. The Court of Appeal observed that the mere fact that one offence was committed contemporaneously with another did not necessarily mean that evidence relating to it was admissible. The exercise of a discretion to exclude could not be criticised on that ground alone. In this case, however, the Court considered contemporaneity to be a crucial factor, and was supportive of the conclusion that the excluded evidence was admissible and of strong probative value.

27. The next argument was that the evidence was admissible to show that at the time of receipt of the package the appellant intended to sell or otherwise supply its contents. In relation to this, the Court said:

“We are of the view that, put shortly, the stock-in-trade and paraphernalia (in the present context we include the cash found) of drug dealing, was probative not only of possession (which imports of knowledge that the content of the package was a controlled drug) but possession for the purpose of sale or supply. This is the primary basis on which it is of such significant probative value. This is for the obvious reason that if one receives drugs the receipt must, by inference, have been for the same purpose or, to put the matter at a more basic level, the receipt of further quantities of the stock-in-trade of a drug dealer can only be for the purpose of the trade. It has been repeatedly said that the law of evidence must be in accordance with common sense. One could scarcely doubt but that if an individual received something which was part of his stock-in-trade, the fact of possession of other items of the same type could be given in evidence, if it were necessary to prove the purpose for which he received viz. sale or supply, again, the possession of a controlled drug.”

28. The final prosecution argument was that the evidence was admissible to rebut a defence to the effect that the appellant had made an innocent mistake in signing for the item on behalf of his housemate, without being aware of the contents of the package. The Court reiterated its view that the law of evidence should not offend against common sense. It agreed with the prosecution that the evidence in question was relevant to this issue:

“The respondent was in possession of what a trader or dealer in controlled drugs might be expected to have and a package containing controlled drugs was delivered to him. He denied that the package was his property but says he merely signed for it on behalf of another. He expressly stated while he was being interviewed to the gardaí that “no, the package isn’t mine, I just signed for it. The other stuff is mine and I’m telling the truth about it”. That was an essential part of his defence.”

29. The Court referred to the rule as expressed in AG v. Joyce and Walsh [1929] IR 256:

“…the mere fact that evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the Court, and that it may be so relevant if it bears on the question whether the acts alleged to constitute the crime charged on the indictment were designed or accidental, or to rebut a defence that would be otherwise open to the accused…”

30. The Court also referred to, inter alia, the judgment of Charleton J. in People (DPP) v Almasi [2020] IESC 35, where the following passage is found:

“… there has to be a rule of law to enable relevant evidence to be excluded. That relevance here is the requirement that where evidence does not substantially advance any side's version of a fact in issue but causes marked prejudice against the accused, that evidence should not be admitted. This is a balancing exercise since relevant evidence is always admissible unless there is a countervailing rule which requires the exclusion of that evidence. Hence, the prejudicial effect must overwhelm the limited probative value of the evidence. Where the evidence, though prejudicial, is highly probative to the prosecution case it must be admitted.”

31. The Court of Appeal concluded that the evidence was undoubtedly reliable, that it was highly probative on the question whether the appellant was in possession of drugs for the purpose of a trade in which he was engaged, and that it substantially advanced the prosecution case without causing any “marked prejudice” to the appellant. It considered that in any balancing exercise the answer would have to be in favour of admission. Its probative value was such that when taken with other evidence in the case, a jury might reasonably be satisfied beyond a reasonable doubt of the respondent’s guilt in respect of the two offences.

32. Having heard the parties’ submissions, the Court ordered a retrial.

Submissions in the appeal

Appellant’s submissions

33. On the first question, the appellant accepts, of course, that if the trial judge had admitted the evidence the defence would have been entitled to argue on appeal that the discretion had been wrongly exercised. He submits, however, that the “with-prejudice” right of appeal against acquittal conferred by s.23 should be seen as narrower in scope than the appeal available to convicted persons appealing against conviction. It is, in his submission, a penal provision that encroaches on the principle of finality in respect of acquittals, and it should therefore be construed strictly. On his argument, it is confined to situations where the prosecution can make the case that the trial judge has misinterpreted or misapplied the law. Reference is made in this regard to the discussion in Walsh on Criminal Procedure (2nd ed., at p.1890) of the judgments of this Court in People (DPP) v. JC [2017] 1 IR 417.

34. The appellant says that an appeal should not be available where, in the exercise of her discretion, a trial judge refuses to admit evidence that is, admittedly, relevant, because she considers that the evidence would have a prejudicial effect out of proportion to its probative value.

35. The appellant refers to the well-known authorities that confirm the discretion of a trial judge to exclude evidence on this ground such as People (DPP) v. Meleady (No. 3) [2001] 4 IR 16. In that case Geoghegan J. stated that a judge had an overriding duty to ensure that the accused received a fair trial, and always had a discretion to exclude evidence if its prejudicial effect outweighed its true probative value. Similarly, in People (DPP) v. Carney [2011] IECCA 53 Macken J. noted that the rationale for the exclusion of evidence on this basis was the protection of the accused from an unfair trial. In the circumstances, the appellant argues that interference with the trial judge’s exercise of discretion would be warranted only where he or she has acted in a nonjudicial manner or has made some fundamental error in the exercise of the discretion. Otherwise, the accused should be entitled to rely on the finality of an acquittal. It is submitted that in this case the trial judge acted appropriately, judicially and within jurisdiction.

36. It is suggested that s. 23 appeals may raise issues under Article 6(1) of the European Convention on Human Rights. In this regard the appellant cites the decision of the European Court of Human Rights in Bujinita v. Moldova ECtHR Application No 36492/02, 16 January 2007. The submission is that it would be contrary to the principle of legal certainty to reopen a verdict simply because the prosecutor disagreed with the court’s assessment of the facts and law. This is said to further the argument that it was not the intention of the Oireachtas for s. 23 appeals to permit the prosecution to seek a revision of the established law applied by the trial judge.

37. It is submitted in the alternative that even if an appeal lies under s. 23 of the 2010 Act, a high bar has to be surmounted in order to overturn the exercise of a trial judge’s discretion to exclude evidence, and that the Court of Appeal erred in finding that the bar had been met. A lower threshold is said to have the potential to significantly fetter the discretion of trial judges, extending the scope, circumstances, and number of withprejudice appeals. The appellant distinguishes the discretion to exclude evidence from a ruling that evidence should be excluded by reason of unconstitutionality or illegality. In the former case the trial judge has a discretion which must be exercised judicially.

38. Reference is made to the position in England and Wales. Sections 58-67 of the Criminal Justice Act 2003, as amended, provide the prosecution with a right of appeal against evidentiary rulings. Section 63(2) of the 2003 Act provides that where there is a single qualifying evidentiary ruling, the ruling must significantly weaken the prosecution’s case. Section 67 of the 2003 Act provides that the Court of Appeal can only reverse a ruling where it is satisfied that it was wrong in law. In R. v. B [2008] EWCA Crim 1144 that Court held that leave to appeal would not be given unless it was seriously arguable that the discretionary jurisdiction was exercised by the trial judge in an unreasonable manner.

39. R. v. B. concerned the decision of a trial judge to dismiss one of two counts against the accused. The prosecution argued on appeal that the ruling was “simply wrong”. The Court of Appeal dismissed the appeal. The relevant statutory provision required the appellate court to be satisfied that the ruling was one that was not reasonable for the judge to have made. To grant leave to appeal, therefore, the Court had to be satisfied that this was seriously arguable. Here, the judge had carefully balanced conflicting considerations and there was no basis for interfering with his decision.

40. The appellant cites decisions relating to the discretion enjoyed by a trial judge. In People (DPP) v. DMcG [2018] IECA 86 Mahon J., giving the judgment of the Court of Appeal, stated that an appellate court would be slow to interfere with the “significant” level of discretion involved but would do so where justice required. In People (DPP) v. Limen [2021] 1 ILRM O’Malley J., in discussing the law on the admissibility of misconduct evidence, noted that a trial judge could refuse to admit evidence that would probably have a prejudicial effect out of proportion to its evidential value. In DPP v. Shannon [2016] IECA 242 the Court of Appeal did not have to determine whether or not the trial judge had been correct in principle to permit charges from two separate incidents to be tried together, but commented that it was satisfied that the ruling was one that was legitimately open to the judge to make. The discretion had been properly exercised because the evidence was relevant to rebut a defence of accident, and the striking similarities between the two incidents made it relevant and probative.

41. It is also argued that the jurisprudence of this Court emphasises the central role of the trial judge in ensuring that an accused receives a fair trial, a role which involves considering the admissibility of evidence. The judgment of Walsh J. in People (AG) v. O’Brien [1965] IR 142 is cited for the proposition that the primary purpose of the rules of evidence is to ensure a fair trial of the person accused. Where a trial judge is exercising her discretion the scales of that balancing exercise must, if anything, be tipped in favour of ensuring, and protection of, the constitutional fair trial rights of an accused person.

42. It is submitted that the Court of Appeal erred in finding that the excluded evidence was highly probative of the case made that the appellant’s possession of the drugs was for the purpose of trade and that it came within the definition of “compelling evidence” when taking into consideration the entirety of the evidence. The appellant points to his denial of any knowledge of the contents of the package addressed to his housemate and to the fact that there was no evidence that he was familiar with the method of postal delivery of drugs.

43. Noting the Director’s reliance on People (DPP) v. McNeill [2011] 2 LR 669, the appellant submits that the excluded evidence did not meet the requirements of relevance and necessity. He points to O’Donnell J’s view that the purpose for which the evidence was to be adduced was the crucial consideration. What is forbidden is to decide on guilt or innocence ‘by a reasoning process that gives credence to the adage of giving a dog a bad name’.

44. The appellant submits that the excluded evidence was prejudicial to him and that the Court of Appeal erred in finding that it did not give rise to “marked prejudice” against him.

45. On the question whether a retrial should have been ordered, the appellant cites DPP v. TN [2020] IESC 53. In that case, O’Donnell J. observed that in some cases a ruling challenged might be of considerable systematic significance, but the particular trial might be quite routine. In such cases, it would be unfair to single out the particular acquittal for retrial. O’Donnell J compared this with the situation where the ruling might be of limited application, but the case might involve a very serious offence such that it would be in the public interest for a retrial to be ordered.

46. The appellant contends that the ruling challenged by the Director in this case was of limited systemic significance. He says that while the offences were serious, they were not very serious. The value of the drugs seized fell considerably short of the threshold (€13,000) to level a charge contrary to s. 15A of the Misuse of Drugs Acts. He also points out that he has been sentenced in respect of the drugs found in his bedroom. The events occurred over five years ago and there was no individual victim of the crime. It was, therefore, an error to hold that it was in the interests of justice to order a retrial.

Respondent’s Submissions

47. In contending that the exercise of the (acknowledged) discretion can be the subject of a prosecution appeal, the Director refers to Carney as illustrating that such a ruling can constitute an error in law. The appeal in that case (against conviction) was in part against a ruling that that certain photographs should be admitted notwithstanding the defence argument that they were more prejudicial than probative. In describing the issue before the Court of Criminal Appeal, Macken J. said:

“Because there is a balancing exercise to be carried out, a trial judge has a discretion to admit such evidence. That discretion must be exercised judicially, having heard appropriate argument on the issue, and having considered the nature of the evidence, its probative value and prejudicial effect. The issue therefore is whether the learned trial judge was correct in the exercise of his discretion in admitting the photographs on the basis of the arguments made, or was wrong in law in so doing.”

48. Charleton J.’s judgment in. Almasi (cited above in paragraph 27) also described the exercise of the discretion as a balancing exercise. Relevant evidence is always admissible unless there is a countervailing rule requiring its exclusion. To warrant exclusion, the prejudicial effect of the evidence must overwhelm its limited probative value. Therefore, if the evidence, though prejudicial, is highly probative it must be admitted. More recently the same judge said in People (DPP) v McHugh [2024] IECA 176, at p. 8, that “The rule used in exclusion by the trial judge was that of prejudicial effect outweighing any probative value. That is a matter of judicial assessment and not of discretion.”

49. The Director submits that the “discretion” therefore involves an assessment of whether the admission of ostensibly admissible evidence would amount to a breach of the accused person’s right to a fair trial. An appellate court is entitled to consider whether or not the trial judge, in carrying out that assessment, erred to the extent that intervention is warranted (while bearing in mind that the appellate court will be slow to intervene).

50. The distinction contended for by the appellant between defence appeals and s.23 prosecution appeals is not accepted by the Director. She points out that in J.C. O’Donnell J. said that the natural and straightforward interpretation of the section was that it permitted a prosecution appeal to raise all issues of law that would be open in a defence appeal.

51. The Director refers to People (DPP) v. Coddington (unreported Court of Criminal Appeal, May 31, 2001) as an example of the approach of the appellate courts. The applicant had been convicted of possession of a controlled drug for the purpose of supply and, on appeal, argued that the trial judge had erred in admitting evidence of the finding of a large sum of cash hidden in his home. His case was that the prejudicial effect of this evidence outweighed its probative value, because it was common knowledge that drug dealers tended to have large amounts of cash. The Court of Criminal Appeal considered that this was precisely why the finding of a substantial sum of cash might have sufficient probative value to be admissible.

52. The Director submits, accordingly, that for the exercise of the discretion to result in a

decision to exclude evidence, the judge’s assessment must be that the evidence has little (or no) probative value and that such value as it has is outweighed by its prejudicial effect. Failure to do so is an error of law. It is submitted that in this case the trial judge did not assess the probative value of the evidence.

53. It is contended that the evidence of the drugs and associated paraphernalia found in the bedrooms was of probative value in relation to the issue of intention to sell or supply the contents of the package. It was also admissible for the purpose of negativing the defence put forward in the appellant’s garda interviews, to the effect that he did not know what was in it. The potentially prejudicial effect was the possibility that it might lead to the “forbidden reasoning” – i.e. that the appellant was more likely to have committed the offence before the jury because he had committed other offences in relation to drugs. In this respect, the Director distinguishes between a situation of contemporaneous offending such as this and the introduction of evidence of offending at an earlier time. It would have been open to the trial judge to direct the jury as to how the evidence should be treated.

54. The Director agrees that evidence of criminal conduct other than the matter before the court is not admissible to show that the accused was likely to have committed the offence in issue. She submits, however, that such evidence can be admissible if it is probative of a fact in the case. Reference is made to Makin v. Attorney General of New South Wales [1984] AC 57, followed in Ireland in Attorney General v. M’Cabe [1927]

1 IR 129 and Attorney General v. Joyce and Walsh [1929] IR 526. The Director cites the latter for the proposition (quoted above) that the mere fact that evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the Court. A number of authorities illustrating the general principles are cited. It is accepted that there must be a nexus between the evidence and an issue in the trial (Thompson v. R [1918] AC 221, People (Attorney General) v. Kirwan [1943] IR 279, Caccamo v. R. [1976] 1 SCR 786, and R v. Clarke [1995] 1 Cr App R. 425).

55. The principles were summarised by O’Malley J. in People (DPP) v. Limen [2021] 1 ILRM.

(i) The court of trial must not permit such evidence to be introduced for the purpose of leading the jury to believe that the accused is likely, by reason of his or her criminal conduct or character, to have committed the crime in respect of which he is charged. “Purpose” in this context does not refer solely to the subjective intent of the prosecutor, but is to be understood as including the objectively likely impact of the evidence. In other words, it would not be acceptable to admit the evidence on the basis, for example, that it might serve to rebut some theoretically available but practically unlikely defence.

(ii) Evidence may be adduced, despite the fact that it shows the commission of other crimes, if it is relevant to an issue of fact that has to be determined by the jury. It will be relevant if it has probative value in relation to that issue. The types of “issue” that may be in question include any defence that may realistically be relied upon (which may relate to whether the actions of the accused were intentional, innocent or accidental). The evidence may also be relevant, depending on the facts, where the accused simply asserts that the complainant’s evidence is untrue.

(iii) As a separate consideration, evidence may be given of criminal behaviour if it is so connected with the offence charged as to form part of one continuous transaction, so that evidence of that behaviour is either necessary to the narrative in relation to the offence charged or demonstrates the nature of that offence (by, for example, demonstrating a motive for the offence).

(iv) The trial judge may in any case, in the exercise of his or her discretion, refuse to admit evidence that is strictly speaking relevant, if he or she considers that the evidence, if admitted, would probably have a prejudicial effect on the minds of the jury out of proportion to its true evidential value.

56. Looking specifically at prosecutions under the Misuse of Drugs Acts, the Director refers to People (DPP) v. Wharrie [2013] IECCA 20 (evidence that the appellant entered the State on a false passport, with the name on the passport being connected with participants in the importation of controlled drugs, proved connections between the appellant and the drugs), R v. Gurney [1998] 2 Cr App R 242 (cash found in the defendant’s home was relevant in relation to a charge of intent to supply drugs) and R v. Yalman [1998] 2 Cr App 269 (paraphernalia of drug use found in the accused’s home could rebut the assertion by the accused that he was duped).

57. On the question of a retrial, the Director says that s. 23(11) of the 2010 Act permits a retrial to be ordered when a conviction is quashed, that s. 23(12) sets out factors that must be considered and that s. 23(13) provides that a retrial can be subject to certain conditions. She submits that the importation of methamphetamine is a more serious offence than the other offences in respect of which the appellant has been sentenced. The case is capable of being fairly retried, and if the appellant is convicted the effect of any delay caused by the trial and appeal process can be taken into account by the sentencing judge.

Discussion

58. On the first issue in the appeal, I am satisfied that a prosecution appeal against a ruling of this nature is not excluded under the terms of s.23 of the Act of 2010.

59. Section 23 undoubtedly interferes significantly with the centuries-old principles concerning the finality of acquittals. That fact, however, cannot compel the court to interpret the provision in a manner not warranted by its text. As O’Donnell J. said in J.C., the legislative intent was to permit prosecution appeals on points of law in the same manner as defence appeals. The crucial distinction between prosecution and defence appeals is maintained, not in the meaning of the words “point of law”, but by the differences in the potential outcome of an appeal. Where the defence succeeds in an appeal on a point of law, the person concerned will in general be entitled to have their conviction quashed unless the court is satisfied that there has been no miscarriage of justice. In contrast, the prosecution may succeed in their argument on a point of law under s.23, but the acquittal must nonetheless be affirmed unless the court is also satisfied that a retrial is in the interests of justice.

60. The appeal under s.23 must be on a point of law. Can a decision made in the exercise of judicial discretion give rise to a point of law? It must be borne in mind here that the word “discretion” can sometimes give the misleading impression that judges exercising a judicial discretion are somehow at large. They are not. It is true, to at least some extent, that a discretionary decision is likely to be one in respect of which different judges might legitimately reach different conclusions. The decision must, however, be made on the basis of consideration of the relevant circumstances and factors. As Clarke

J. said in Shell E & P Ireland v McGrath [2013] IESC 1, the term “discretionary” simply means that a particular result does not automatically follow from the establishment of a particular set of circumstances, because there may be other factors that can properly be taken into account.

61. In my view, a decision made on foot of a discretion may be found on appeal to have been erroneous in law, if the judge is found to have simply failed to exercise the discretion, or have taken into account an irrelevant, or “improper” factor, or have failed to take into account a relevant factor, or to have misunderstood or misapplied applicable legal principles. The reason that appellate courts will be “slow” to interfere with such a

decision is that they cannot do so unless there clearly was a legal error of this nature – it would not suffice for the judges in the appeal to prefer a different result in criminal appeals of this nature.

62. Here, the issue before the trial court was whether the proposed evidence was more prejudicial than probative. As the authorities show, a decision on that issue involves consideration of the purpose for which the evidence is to be adduced and its relevance to a matter that is in dispute in the trial, as well as consideration of the potentially prejudicial effect on the defendant. It is a decision based on criteria established in law and one that has legal consequences. Accordingly, in my view such a decision is amenable to an appeal on a point of law if the party aggrieved by it can point to an error of law in the manner in which it was reached.

63. This conclusion is not affected by the decision of the ECtHR in Bujinita. The issue in that case arose from in a context where the prosecutor, having failed in the appeal court and exhausted the appellate options, used a procedure (one apparently not available to defendants) to apply to the Supreme Court for annulment of the appeal court’s decision. That was why the debate in the ECtHR concerned the reopening of a final decision. Here, the Director has availed of a statutory mechanism, within the criminal justice appellate structure, that is clearly intended to give her a right of appeal. She is no more seeking to disturb a “final” verdict than is a defendant who appeals against conviction.

64. The next question, then, is whether the ruling in this case was erroneous.

65. It is not, unfortunately, entirely clear why the trial judge reached the conclusion that she did. It does seem to be clear that she saw the proper focus of the trial as being on the factual evidence concerning the delivery of the package, and that she did not see the impugned evidence as being of assistance in that context. It is not possible to say, however, whether she thought that the evidence was simply of little or no probative value or, alternatively, that it had some probative value (or even significant value) but that its value was outweighed by the prejudice.

66. There is no doubt in this case but that the appellant took physical possession and control of the package of methamphetamine. The issue between the prosecution and the defence was his state of mind in so doing. It seems to me that there were four main possibilities:

(i) He accepted the package entirely innocently for the purpose of giving it to a housemate who was absent at the time;

(ii) He knew or had reason to suspect what was in the package, but accepted it anyway with the intention of giving it to his housemate;

(iii) He knew or had reason to suspect what was in the package and accepted it with the intention of keeping it to sell himself; or

(iv) He knew or had reason to suspect what was in the package and accepted it because he and his housemate were in a joint enterprise to sell or supply controlled substances.

67. Any of possibilities (ii), (iii) or (iv) could demonstrate the necessary mens rea for the offence of possession with intent to sell or otherwise supply. In my view the fact that the appellant had admitted that he intended dealing in the drugs found in his bedroom, and the fact that the co-accused had sufficient quantities of drugs in his room to give rise to a presumption of an intention to deal, could have been of significant probative value in determining this issue, for the reasons set out in the judgment of the Court of Appeal. It could also have gone some distance towards rebutting a defence of ignorance or accident. It was therefore potentially relevant to the issue to be determined by the jury.

68. It may also be that, perhaps because of the significant lapse in time between the pleas entered by the appellant in respect of the drugs in the bedroom and the trial, the trial judge saw the proposed evidence as closely akin to evidence of previous convictions. If so, that was an error. I agree with the Court of Appeal that contemporaneity would not, on its own, be sufficient to make evidence of other offending conduct admissible but here the evidence was a reasonably significant part of the context in which the appellant accepted the package and was relevant to the disputed issue of mens rea. To put the matter another way, it seems highly improbable that a trial judge would have acceded to an application to sever the indictment in the circumstances. In my opinion, the evidence on each count would, if all counts had gone to trial, have been admissible on each of the other counts.

69. To this extent, the evidence would certainly have been prejudicial to the appellant. But that is because it would have had probative value. The term “marked prejudice”, as used by Charleton J. in Almasi, quoted by the Court of Appeal in the instant case, has to be read in the context: the reference was to “the requirement that where evidence does not substantially advance any side's version of a fact in issue but causes marked prejudice against the accused, that evidence should not be admitted.”

70. The prejudice that must be avoided is unfair prejudice created by evidence that does not otherwise substantially advance the case being made. Prejudice arising from probative evidence is inevitable.

71. I would be prepared to hold, therefore, 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. I would further hold 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 has previously commented (in, e.g., J.C.) on the potential difficulties for an appellate court in applying the s.14 criteria but in this case they are relatively straightforward. 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. For the reasons already discussed, 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.

72. That does not, however, dispose of the appeal. The final issue is whether this Court should affirm the order of the Court of Appeal quashing the acquittal and directing the retrial of the appellant.

73. The jurisprudence on the application of s.23(11) of the Act of 2010 was recently considered by Murray J., giving the decision of this Court in People (DPP) v. J.B. and S.M. [2025] IESC 10. That was a case involving charges of attempted murder and possession of a firearm with intent to endanger life, where the victim had been shot at and seriously injured in a public place. The Court had held in an earlier judgment that the trial judge had erred in directing an acquittal at the close of the prosecution case, because she had not attributed appropriate potential weight to certain available statutory inferences. In dealing with the question of a retrial Murray J. stressed that such an order did not automatically follow from the finding of error, since the Court had to be satisfied also that a retrial would be in the interests of justice.

74. The decisions in J.C., People (DPP) v A. McD. [2016] IESC 71, People (DPP) v. TN [2020] IESC 53, People (DPP) v DK and MK [2021] IECA 32 and People (DPP) v BK [2023] IESC 38 are cited in the judgment. Two propositions were seen as emerging from them with particular force. Firstly, since it is the Director who seeks the order for a retrial it is a matter for her to persuade the Court that the order should be made.

75. Secondly, the Court does not approach an appeal of this kind on the basis that, where it holds that compelling evidence has been erroneously excluded, a retrial should generally be directed in the absence of significant countervailing factors. Murray J. observed that this followed from the consideration that it should not be viewed as routine that the Director can, whenever dissatisfied with a ruling by a trial judge and a subsequent acquittal, bring an appeal under s.23.

76. Murray J. then considered the application to the case before the Court of the factors listed in the section. A retrial was ordered. The statutory conditions were met – there was no reason why a retrial could not be conducted fairly, and the passage of time had not been such as to justify refusing the order. The most significant feature, however, was that the objective evidence relating to the gravity of the injuries inflicted in the case, and the impact on bystanders and witnesses (who could also have been seriously injured) gave rise to a pressing public interest in proceeding with the prosecution.

77. It is a feature of the cases that have given rise to written judgments on the issue of a retrial order under s.23 that they have all, to date, concerned trials where the trial judge gave the jury a direction to acquit that was wrong in law (that is, an order of the kind covered by s.23(3)(b)). The instant case may be the first concerning a ruling that is covered by s.23(3)(a) – the erroneous exclusion of evidence, in circumstances where the ruling did not lead to a direction to acquit.

78. In some cases, a judge may give a direction because of a view taken of the adequacy of the evidence. An appeal may be allowed if an error is identified in the judge’s assessment (as in JB and SM, where the trial judge had not taken account of the potential effect of certain inferences). In other cases, the effect of a judge’s ruling excluding key evidence as inadmissible might be to fatally weaken the prosecution case, to such an extent that there is not enough evidence to go to the jury and a direction to acquit must follow.

79. Here, however, the ruling did not have a terminating effect, and the case did in fact go to the jury. In other words, a viable prosecution case remained after the ruling and there was sufficient evidence to convict the appellant if the jury had accepted that the evidence put before them proved his guilt beyond reasonable doubt. As prosecution counsel put it in his closing speech, they could certainly have done so if they accepted the prosecution case so far as the package was concerned – the evidence that the appellant had identified himself as the co-accused and signed for the package in that name.

80. I see that evidence as being the kernel of the prosecution case – since the package was addressed to a housemate who had drugs in his room, it is difficult to see that the appellant could properly have been convicted of possession of it if, for example, the only evidence against him had been that, when it arrived, he too had drugs in his room. The evidence of what happened when the delivery was made, if accepted by the jury, was sufficient both to establish physical possession and to ground an inference of knowledge and of joint enterprise. It is, however, essential to bear in mind that that both elements of that evidence – what the appellant said, and what name he signed – were disputed. A version consistent with innocence was put before the jury (in the form of his interviews with gardaí and the physical evidence of the “unclear” signature).

81. In the event, the appellant was acquitted. The situation now is that, in effect, the Director seeks a second opportunity to prosecute him, with a strengthened case. It seems to me that in this situation the Court is required to pay particularly close attention to the question whether, in all the circumstances of the case, it is in the interests of justice to order a retrial. It should be emphasised that my focus here is solely on cases where the ruling excludes some prosecution evidence but leaves a sufficient case to go to the jury, there is a jury acquittal and the prosecution appeals with a view to seeking a retrial.

82. It must, I think, be borne in mind that it is entirely commonplace to have disputes about evidence in the course of a trial, and possibly rare to have a trial in which the judge is not required to give a ruling in some such dispute. Most are likely to involve proposed prosecution evidence, and many may result in some part of the evidence being excluded.

83. To recap, “compelling evidence” is evidence which is (a) reliable, (b) is of “significant probative value” and (c) is such that when taken together with all the other evidence adduced in the proceedings, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt. Unless it is clear that the disputed evidence has no probative value, or has only minor value, or is manifestly unreliable, or is otherwise inadmissible, it will always be strongly arguable in a prosecution appeal in a case like this that the ruling excluding the evidence was a ruling excluding compelling evidence that, “when taken together with all the other evidence” in the case, could have been sufficient for a conviction. That would follow from the fact that there was already enough evidence left in the case to go to the jury.

84. A practice of routinely appealing against acquittals in such frequently occurring circumstances would, in my view, be highly undesirable.

85. The analysis of O’Donnell J. in T.N. is relevant here. Having referred to the judgment of McKechnie J. in A. McD., he said (in paragraphs 10 and 11):

“10. In those paragraphs of the judgment in A. Mc.D., it is emphasised that s.

23 cannot be considered a routine vehicle for the prosecution to appeal a ruling with which it is dissatisfied. It is, I would add, clear, at almost every point at which the Act considers the matter, that it is not seeking to establish a mirror image of an appeal by an accused person from a conviction. McKechnie J. contrasts the provisions of s. 23 with the provisions of s. 34 of the Criminal Procedure Act 1967, which permits a without prejudice appeal, and indicates that the prosecution must consider in each case whether that is not a more appropriate vehicle if it is desired to obtain a definitive decision on law which may be of wider application in other cases. This, I consider, is an important point. There is no necessary correlation between the significance of the ruling, alleged to be in error, and the importance of the particular prosecution. In some cases, of which J.C. was an example, the ruling challenged may be of very considerable systemic significance, but the particular trial and ruling which is the vehicle for the appeal may, itself, be quite routine. In such circumstances, it may be considered that justice is served by the correction of the error and that it would be unfair to single out the particular acquittal for re-trial. In other circumstances, however, the point alleged to be erroneous may be clear-cut or of extremely limited application, but the case may involve a very serious offence where it is clearly in the public interest that it should proceed to determination.

In such a case, an order for a re-trial may be appropriate…

11. In addition to the observations of McKechnie J. in A. McD., I would add that the structure of the Act appears to make it clear that the question of a retrial is a separate and distinct issue, and does not follow automatically from a determination that a directed verdict, or a critical ruling resulting in an acquittal, is erroneous (see the observations to similar effect of Denham C.J. and MacMenamin J. in J.C. at pp. 427 and 468, respectively). This again emphasises the exceptional nature of the order quashing an acquittal and directing a re-trial, and reinforces the obligation of the court to approach that issue with particular care.”

86. The Act of 2010 certainly establishes exceptions to the status of finality conferred on jury verdicts by the common law, but the exceptions should be seen as arising in certain limited circumstances only, where the interests of justice require the reopening of a jury verdict. That means more than simply a finding by an appellate court of error on the part of a trial judge, even if the error resulted in a direction or the exclusion of compelling evidence.

87. Unlike judges in their rulings on issues of admissibility or the giving of a direction, juries do not give reasons for their decisions, and it is generally not possible to know what it was that caused them to acquit. It may be, in a given case, that the jury acquitted because they were not convinced by, or had positively rejected, some key element of the prosecution case. It might be true to say, depending on the facts of the case, that the excluded evidence would have strengthened that key element. But in another case the excluded evidence could relate to a quite separate element of the evidence. I would see the instant case as potentially coming into that second category. The excluded evidence could, as I have said, been of significant probative value in relation to the contested issue of mens rea. It is, however, at least possible that the jury did not accept beyond reasonable doubt the contested evidence relevant to the act of taking physical possession – that is, the evidence that the appellant identified himself as, and signed in the name of, the co-accused. If they did accept it, the excluded evidence could have strengthened the case by providing provided clarity as to context, motivation and intention. If, however, they were not convinced that the appellant had given or signed the co-accused’s name, the excluded evidence would not have changed either of those factual matters. (As I have noted already, the jury had been given an alternative version consistent with innocence in relation to the package.) In that scenario, to order a retrial might simply be the equivalent of tossing a coin for a second time.

88. In my view, circumstances of this nature require the Director to show that there is a clear public interest in the matter proceeding to a retrial, before holding that it is in the interests of justice to make such an order. Such a feature might relate to the intrinsic seriousness of the case, or perhaps to the interests of a victim.

89. In this case, the Director is probably correct in saying that a retrial could be conducted fairly, and the appellant has not been able to point to any particularly strong countervailing factor in that respect. The onus is on the Director, however, to persuade the Court that it is in the interests of justice to order a retrial. She submits that the charge is a serious one, because it involved the importation of methamphetamine. That may be so, but the appellant is not charged with importation. The value of the drugs in the package was about €6,000. Many judges might see a value of €6,000 as being within the jurisdiction of the District Court to try a matter summarily. The combined total, if one adds in the value of the drugs in both bedrooms, might be seen as exceeding that jurisdiction but not by a huge margin, and the appellant is correct in saying that it was a long way short of a charge under s.15A of the Misuse of Drugs Act 1977 as amended. Further, it is an offence with no identifiable victim whose interests might require vindication. Finally, the appellant has already been sentenced in respect of the drugs in his room.

90. In other words, this was a fairly standard prosecution involving the alleged possession of a quantity of drugs, the value of which was in no way remarkable. I do not see that it is in the interests of justice to routinely order retrials in such cases, particularly where the individual concerned has been acquitted on the merits by a jury.

91. I would also agree with the appellant’s submission to the effect that the impugned ruling in this case was not of systemic significance. The Court of Appeal was correct in finding the ruling to have been erroneous, but the error was entirely case-specific. In any event, the systemic significance of an error is a matter that goes more to the requirement that it be corrected by an appellate court than to the question whether a retrial is in the interests of justice.

92. In my view, the Director has not shown that there is any feature of this particular case such that a retrial is in the interests of justice. In the circumstances I would allow the appeal, set aside the order of the Court of Appeal and affirm the acquittal.