Supreme Court dismisses appeal under Criminal Procedure Act 2010 s.23, affirming acquittal and rejecting re-trial.

THE SUPREME COURT

IN THE MATTER OF THE CRIMINAL PROCEDURE ACT 2010,

SECTION 23

[Appeal No. 398/2012]

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Between /

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

Appellant

-and-

MR. C.

Respondent

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 so do,

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.” (Emphasis added)

7. As pointed out in the main judgment, the interpretation of section 23(11) of the 2010 Act is of the first importance: such in its

entire application must be strictly construed. I can see no scope whatsoever for applying a different standard of construction to some

of its requirements, in particular those mentioned at subpara (a)(i), as distinct from certain other elements of the section. Its true

meaning, in my view, must be ascertained by the context in which it sits and by reference to other provisions of the Act which can

be regarded as truly being in pari materia with it. This means that some provisions of Part 3 of the 2010 Act are also relevant.

8. Part 3 of the 2010 Act, which is headed “Exceptions to rule against double jeopardy”, contains sections 8 to 10 inclusive. Under

section 8, the DPP may seek a re-trial of a person acquitted by jury verdict, either on the merits or by direction, of a “relevant

offence” if it appears to her that there exists “new and compelling evidence” and that it is in the public interest to so do. A similar

application may be made, under section 9, where a person has been convicted of an offence against the administration of justice,

which offence is referable to the trial from which the acquittal resulted and where it is in the public interest to do so. Both

applications must be made to the Court of Criminal Appeal (pre-2014); if the Court, on the hearing thereof, is satisfied as to such

matters, it “… shall make a re-trial order quashing the person’s acquittal and directing that the person be re-tried …” if it is in the

interests of justice to do so. (section 10(1) and (2) of the 2010 Act).

9. In deciding whether or not to make the order as applied for, that is, a re-trial order, the Court must have regard to certain matters

outlined in section 10(3) of the Act, such as whether or not any re-trial could be conducted fairly, the amount of time that has

passed since the act or omission that gave rise to the indictment, and the interests of any victim of the offence concerned. Such

matters, incidentally, are identical to those mentioned in section 23(12) of the Act.

10. The provisions of subsections 10(1) and 10(2) of the 2010 Act, which relate to applications under section 8 and section 9,

respectively, envisage the making of one order only: not two orders. No distinction is made or provided for between the court being

satisfied as to the existence of the matters specified in section 8 or 9, as the case may be, on the one hand, and being satisfied to

quash the acquittal and order a re-trial, on the other. There is but one composite order involved and no more. This makes perfect

sense, as the pivotal purpose of sections 8-10 of the Act is the seeking of a re-trial, which if granted would inevitably involve

quashing the conviction. There would be no point whatsoever in the court declaring that “new and compelling evidence” exists

(section 8), or in finding that “compelling evidence” exists and that a conviction against the administration of justice has been

secured (section 9), whilst at the same time not being satisfied that a re-trial should be ordered. All such matters are inherently

interlinked and each must be regarded as an essential part of the overall exercise. Therefore, unless satisfied that all of the

requirements exist, the Court should simply dismiss the application. To do otherwise would be abusive of the provisions. In my view,

similar reasoning applies to section 23 of the 2010 Act.

11. Section 23 of the 2010 Act is in Chapter 1 (“With prejudice prosecution appeals”) of Part 4 (“Appeals and Matters Relating to

Appeals”). In the main judgment I have set out what I believe is the correct interpretation of the section; in particular, I have

argued:

(a) that, much like sections 8–10 of the Act, subsection (11) envisages one order only where the application is

successful, which is to quash the acquittal and order a re-trial;

(b) that such an order can only be made if the requirements of subsection (11)(a)(i) and (ii) are met (para. 6,

supra); and

(c) that these are cumulative conditions and not disjunctive; unless both are satisfied, the Court must not only

refuse to make the order applied for but must affirm the acquittal (subsection (11)(b)).

12. It follows from this analysis that the issue raised by the erroneous ruling of the trial judge, as found by the majority, which is the

Kenny issue, should never have been considered in isolation from or prior to the re-trial issue. As matters now stand the use of

section 23 of the 2010 Act has been utterly futile in that no re-trial is being ordered, which relief is at the heart of the section. Every

success, if one can call it that, which the DPP has gained from the majority judgment could have equally been obtained if the opinion

of this Court was sought pursuant to section 34 of the Criminal Procedure Act 1967, as amended (“the 1967 Act”). That section not

only remains on the statute book but every right of appeal provided for “by [the 2010 Act] or any other enactment or rule of law” has

been expressly preserved by section 28 of the 2010 Act. It is therefore a matter of the utmost regret that the DPP has decided to

pursue a “with prejudice” appeal to obtain the same result, when in fact another and entirely more appropriate process was available

via the provisions of section 34 of the 1967 Act.

13. There is, however, another consequence arising out of the outcome of this appeal which is even of greater significance. One is

now left in a situation whereby the majority of this Court is satisfied that section 23(3)(a) of the Act has been satisfied but that no

re-trial will take place. The former means that the trial judge erroneously excluded “compelling evidence”: such, by statutory

definition, is described as being “reliable”, “of significant probative value” and is such “that when taken together with all of the other

evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt

in respect of the offence concerned” (section 23(14) of the 2010 Act). Again, as pointed out in the main judgment, this conclusion is

a public declaration by the Supreme Court that, but for the ruling, there was in fact adduced at the trial sufficient evidence that a

jury might reasonably have convicted the respondent. Such is now part of the public record and preserving the anonymity of Mr. C is

hardly sufficient to mitigate the seriousness of this finding. And yet the Court must, according to subsection (11)(b) of the section,

“affirm the acquittal”: not simply dismiss the appeal but uphold the innocence of the respondent. This positioning is entirely

irreconcilable; with great respect, therefore, I believe the outcome to be illogical, irrational and bordering on being farcical.

14. Furthermore, there is no judicial or other avenue by which the respondent, if he so wishes, could take any steps to challenge the

obvious implication of this Court’s conclusion, as above set out, with a view to re-establishing his good name. Therefore, although

effectively declared an innocent man, he must suffer this major stain on his character and good name for life. This, even intuitively,

offends against both common sense and also, more importantly, against elementary principles of justice. This could hardly have been

envisaged by the section; I am entirely perplexed by such result.

15. So the Kenny issue should never have been determined unless, in conjunction with it, the Court had considered and concluded

that a retrial would be appropriate, which would inherently involve quashing the acquittal. In my view, the section does not permit a

separation of such matters; subsection (3) issues should not have been pronounced upon unless and until the Court was also satisfied

on the re-trial issue. If the appeal had been processed in his way, I am not at all certain that the outcome would be as it is.

16. A further point to consider: operating the section in the manner in which it has been in effect incorporates into it the facility

provided for by section 34 of the 1967 Act. If by the use of section 23 of the 2010 Act, the DPP can obtain the opinion of this Court

(pre-2014) in precisely the same way as she can by utilising section 34 of the 1967 Act, but with the added advantage of getting a

re-trial if all goes well, what is the incentive to seriously choose between one and the other? This may not be of real importance to

the prosecuting agencies but it has great significance for an acquitted person who can rest with finality in one situation, but who

must survive in an atmosphere of hostile aggression and uncertainty in the other. This Court, in my view, should not permit the

interchangeable use of these provisions. It should establish, as definitively as may be, the parameters between both sections and

should also specify the limited and exceptional circumstances in which section 23 could be invoked, even if the necessary evidential

base could otherwise be established, which I very much doubt.

Legal Certainty

17. It had not been my intention to add to what I have previously stated in the main judgment regarding this question of legal

certainty arising out of the test substituted for the Kenny principles. However, in light of the remarks make by Clarke J. in his

judgment in this regard, I should make some observations.

18. First, I do not recall that the discussion regarding legal certainty had during the present application raised either of the two

concerns identified by Clarke J. at para. 2.1 et seq. of his judgment. I believe that each member of the Court, or at least the vast

majority of its members, is satisfied that if a re-trial was in fact to be ordered, it would have to be conducted in accordance with the

new test and not its predecessor. Whatever about the debate as to whether the effect of the majority judgment is to declare what

the law has always been or is to establish new law, what is clear is that as and from April, 2015, Kenny no longer represents the

applicable law, but rather has been replaced by the decision in this case. So, in my view, no question could arise that Kenny could

somehow be re-instated so as to complete the legal process involving Mr. C.

19. Secondly, again I do not recall any debate questioning the authority of the majority view simply because there were three

dissenting judgments from what that view proclaimed. That majority view suffers no less because of this; likewise for Kenny itself,

which was also a majority view. This very point has been discussed at some length in the main judgment at para. 85 thereof.

20. Rather, the remarks about legal certainty arose from the very wording of the substituted test itself, which surely cannot be

immune from such debate simply because it was contained in one paragraph of one judgment. It was in this particular context that

concerns were expressed regarding legal certainty and the factual operability of the test. In this regard, I remain entirely satisfied

with the observations I have previously outlined in the main judgment (para. 261).

Re-trial or No Re-trial

21. As is self-evident from the main judgment, I have concluded that, in accordance with the principles set out in Attorney General &

Anor v. Ryan's Car Hire Limited [1965] I.R. 642, Mogul of Ireland Limited v. Tipperary (North Riding) County Council [1976] I.R. 260

and other similar cases, the DPP has failed to establish that Kenny was plainly and conclusively wrongly decided, and thus should be

set aside. On that basis it inevitably followed, in my view, that the trial judge was absolutely correct in the decision which she made

following the voir dire application held in July, 2012. Accordingly, as the appeal had to be dismissed in such circumstances, there

could be no question of a re-trial. However, strictly without prejudice to this view, I would like to make some observations on this

question, even though clearly it must follow that such are purely obiter.

22. In The People (DPP) v. O’Shea [1982] I.R. 384, this Court decided that arising out the plain and unambiguous wording of Article

34.4.3° of the Constitution there was a right of appeal to the Supreme Court from every decision of the High Court, including the

Central Criminal Court, which is of course the High Court exercising criminal jurisdiction (section 11 of the Courts (Supplemental

Provisions) Act 1961). This included a prosecutor’s right to appeal an acquittal, even one resulting from a jury verdict. The

consequences of that decision, as demonstrated through a series of later cases, led to the emergence of an issue as to whether or

not the Supreme Court had the power to order a re-trial if an appeal against an acquittal was successful.

23. The point arose in The People (DPP) v. Quilligan (No.2) [1989] I.R. 46, where this Court had to confront that issue having

previously allowed such an appeal. Both Henchy and Griffin JJ. took the view that the constitutional right of appeal under Article

34.4.3° of the Constitution did not carry with it a “concomitant or ancillary jurisdiction to order a retrial”. Such, in their view, could

only be legislatively conferred. Both Walsh J. and McCarthy J., on the other hand, felt that such a right was part of the inherent

jurisdiction of the Court to give effect to its order allowing the appeal. The fifth member of the Court, Hederman J., reserved his

position on the issue of principle.

24. That case and the views of the individual members of the Court are not, I think, directly germane to the issue of a re-trial in this

case. Apart from any potential constitutional challenge, Henchy J. seemed to suggest that if legislatively based, such a power, at

least at a prima facie level, could be conferred. Unquestionably, at that level of understanding, section 23 of the 2010 Act has so

provided. Accordingly, on its face there would appear to be a power on the Court to order a re-trial, if it determines that the

statutory requirements to that effect have been satisfied. Such a power, however, would have to yield if in conflict with any

constitutional norm.

25. It is important to point out that no issue with regard to the constitutionality of section 23 of the 2010 Act has been raised in the

present proceedings. Therefore, I should refrain from further comment about the outcome of any such application until the same is

made, and obviously until the precise grounds thereof have been identified and established.

26. In light of the statutory requirement, which reflects a constitutional obligation, that a re-trial should only be ordered if it is in the

interests of justice to so do, it is not altogether clear what the specified matters identified in section 23(12) of the 2010 Act add to

the Court’s evaluation of this issue for, even in their absence, no re-trial could be ordered unless justice-driven and of course unless

such could be conducted in accordance with Article 38(1) of the Constitution. Therefore, all relevant matters are available for

consideration, with some being more important than others, depending on circumstances. That being so, I do not consider it

necessary to analyse in any great depth the factors specified in the subsection (12), although I will briefly comment on them later in

this judgment. In any event, my decision that there should be no re-trial stands at a higher level.

27. At the submission stage of the voir dire the DPP took no objection to the Kenny principles being applied to the circumstances of

the case as then established. It has never since been disputed but that the trial judge was compelled by constitutional obligation to

follow and apply Kenny. In the main judgment, I have stated that there was no other course open to her and pointed out with

particular concern that it would have been beyond the feat of any human to apply the substituted test which had not, at that point,

being conceived, formulated, established or even urged. Of telling significance is the fact that during the current application counsel

on behalf of the DPP agreed, and rightly so, that this was the case. And yet notwithstanding this, the majority have decided that the

judge erred within the meaning of section 23 of the 2010 Act. Logically one would have thought that before such a conclusion could

have been reached there must have been some way in which she could have avoided committing this error. The only way, if one is to

follow through on this, is to say that she should have pursued the impossible. Whilst I have no desire to re-examine the issues

previously dealt with in the judgments of this Court given in April, 2015, I remain convinced that the Oireachtas could never have

contemplated such a scenario.

28. Leaving aside that last observation, however, it would seem reasonable to suggest that in the circumstances outlined, the trial

conducted in July, 2012 was one which should be regarded as having been conducted in accordance with constitutional requirements

and having regard to the only rule of law which could then have applied. To force the respondent to engage with the perils of a re-

trial, when to every actor involved in the process the acquittal previously ordered was as a result of a trial conducted impeccably in

due course of law, would be utterly unjust. If there were to be a re-trial, it would now have to be conducted in a different legal

regime which came about solely at the express request of the prosecutor. I know of no authority, and none has been cited, which

could even remotely support such a proposition. Accordingly, at that high level of principle, I would decline to make such an order.

29. If, however, one were to engage with each of the matters specified in section 23(12) of the 2010 Act, I would still reach the

conclusion that no re-trial should take place, albeit only by reference to section 23(12)(d). The matters mentioned in section 23(12)

are:

“(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 [the Court] considers relevant to the appeal.”

30. As can be seen, the first such matter is whether or not a re-trial could be conducted fairly: I have no doubt but that the fairness

of the process could and would be ensured by the trial judge. The second point relates to the lapse of time from the date of the

commission of the offences. In such context one should not disregard the period which has also expired from the date of the

acquittal. Whichever is looked at, it could not be said, considering the overall jurisprudence in this area of the law, that the timeframe

is such as to be a significant factor in deciding this issue. In the context of the third aspect as set out, no specific evidence was

advanced by the DPP which would elevate the interests of the victim to such an extent as would justify a re-trial. Whilst I readily

acknowledge that robbery and attempted robbery committed with the display of an imitation firearm are very serious offences,

nonetheless this specific requirement of subsection (12) of section 23 must relate to the individual facts of any given case. Thus the

matters mentioned at 23(12)(a) and (b) would tend to favour a re-trial, and that listed at 23(12)(c) is neutral. However, it is by

reference to “other matters” (section 23(12)(d)), which have been articulated throughout this and indeed the main judgment, that I

have come to the conclusion that no re-trial should occur. Thus while in a sense my conclusion on the re-trial issue stands at a

higher and more general level, the same result is reached by reference to the section itself also.

31. For the reasons advanced in the main judgment and supplemented by this second judgment, I would dismiss the appeal, affirm the

acquittal of the respondent and, in the process, express a view that no re-trial should be ordered.