Supreme Court affirms acquittal as interests of justice do not require retrial despite erroneous evidence exclusion.

THE SUPREME COURT

[Appeal No: 398/2012]

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Between/

The Director of Public Prosecutions

Prosecutor/Appellant

and

J.C.

Accused/Respondent

(No. 2)

Judgment of Mr. Justice Clarke delivered the 22nd June, 2015.

1. Introduction

1.1 The Court has already given judgment on a number of important aspects of this appeal brought by the prosecutor/appellant (“the

D.P.P.”) against the acquittal of the accused/respondent (“Mr. C.”). By a majority of four to three this Court concluded both that an

appeal lay in the circumstances this case and that, so far as the first issue on that appeal was concerned, the D.P.P. should

succeed. As noted in a number of the judgments of the members of the Court then delivered, the structure of s.23 of the Criminal

Procedure Act 2010 (“the 2010 Act”) is clear. In order that an appeal with prejudice, taken by the D.P.P., can be successful, it is

necessary that the Court be satisfied of two things. The first is that there was an error in the trial either by the erroneous exclusion

of compelling evidence or in the course of the judge’s directions to the jury. The second is that it be in the interests of justice that

there be a retrial. Unless both elements are established, the acquittal must be affirmed. In substance, the majority was of the view

that the first element of the requirement thus identified had been met in that evidence, which was compelling within the meaning of

the section, was found to have been erroneously excluded.

1.2 However, it is clear that such a conclusion, while necessary to a successful appeal on behalf of the D.P.P., is not sufficient to

allow for the acquittal concerned to be overturned and a retrial directed. In order for such a result properly to occur, it is necessary

that the Court also conclude that it is in the interest of justice that a retrial be ordered. If the Court is not so satisfied then it is clear

that the acquittal should be confirmed.

1.3 Subsequent to the delivery of the previous judgments by the Court, further written submissions were directed and a further oral

hearing occurred. That process was directed towards determining whether the interests of justice required that there be a retrial. For

the reasons just identified it is on the answer to that question that the final outcome of the appeal now turns, for the options open

to the Court are to direct a retrial (if that is what the interests of justice require) or to affirm the acquittal of Mr. C. (if the Court is

not satisfied that the interests of justice require a retrial).

1.4 There was, in my view, quite a significant degree of common ground between counsel for the D.P.P. and counsel for Mr. C. as to

the factors which ought properly be taken into account in reaching an assessment as to where the interests of justice lie in the

circumstances of this case. It might well, of course, be the situation that different factors might potentially be relevant in different

types of cases so that the factors thus identified may not apply, or apply in some way, in other cases. However, for the purposes of

this case, the difference between counsel stemmed largely from their submissions as to the weight to be attached to many of those

factors in the circumstances of this case and, as a result, as to where the overall balance lay. I will shortly turn to the factors thus

identified, to the submissions of counsel as to the weight to be attached to them and to an overall assessment of where the balance

of justice lies. However, before so doing, I should make some brief general observations.

2. Some General Observations

2.1 In the course of debate between the Court and counsel it was suggested that there might be a lack of legal certainty as to the

test which is now to be applied in relation to the admission or exclusion of evidence where the gathering of that evidence may have

occurred in illegal or unconstitutional circumstances. In fairness, the issue was one raised more by the Court than by counsel. Also, it

must be acknowledged that there are two ways in which such a question might, depending on one’s view, arise in the circumstances

of this case.

2.2 It is important to recall that the ultimate decision of the majority was to the effect that D.P.P. v. Kenny [1990] 2 I.R. 110 had

been wrongly decided and to indicate that the appropriate test to be applied was that identified in the majority judgments in this

case. One of the issues which necessarily fell for debate was as to the test by reference to which the evidence in controversy in this

case would be considered for admission in the event of a retrial. It might be argued that there is a potential uncertainty as to which

test (i.e. the Kenny test or the J.C. test) should be applied. For reasons which I will shortly address, I do not believe that there could

be any question about that issue.

2.3 A second possible question surrounding legal certainty might stem from the fact that there were three majority judgments in this

case. It is true that there can be circumstances in which some doubt can arise as to the precise test to be applied in the future

where there are a number of judgments of this Court (particularly where, in the event of a divided court, there are a number of

majority judgments) and where it may be possible to argue that the precise approach to the key question differs as and between

those majority judgments.

2.4 However, while such a situation may unfortunately arise in some cases, I frankly find it impossible to see how there could be any

question as to the precise test to be applied in the future as a result of the majority judgments in this case. It is important to recall

that both O’Donnell J. (at paragraph 99) and MacMenamin J. (at paragraph 26) went to some pains to point out that they adopted

the test set out in my judgment (which is to be found at paragraph 7.2). Indeed, both O’Donnell J. and MacMenamin J. went further

and indicated that the very reason why they did not include any commentary on that test in their own judgments was precisely to

prevent any risk of such commentary being seen to be a gloss on the test. Their judgments were directed towards explaining why it

was considered appropriate to depart from Kenny and adopt the new test proposed. Nothing said could reasonably be interpreted as a

qualification of that new test as set out at paragraph 7.2. The Chief Justice agreed with all of the majority judgments.

2.5 I can readily understand that the application of the test thus identified may well, in the circumstances of different types of cases,

give rise to legitimate debate. But the law in all sorts of areas (and not least the criminal law) is full of debate about how a particular

test may be applied in different circumstances. The fact that it may take a number of decisions of the courts (and, indeed, the higher

appellate courts) to define with some precision how a test is to be applied in a range of different circumstances does not take away

from the fact that the test is clearly set out.

2.6 I cannot, therefore, see that there is any basis for the suggestion that the test approved by the majority in this Court lacks

certainty. The majority went to considerable lengths to ensure that the text of one paragraph of one judgment represented the test.

While that test is, undoubtedly, more nuanced than the quasi-absolute position which was identified in Kenny, nonetheless it is no

more nuanced than many tests which the courts are required to apply in a whole range of circumstances and there is, therefore, in

my view no basis for the suggestion that the test thus identified lacks legal certainty.

2.7 Furthermore, I can see no basis for the suggestion that anything other than that test, as thus identified, should be applied in the

event that a retrial were to be ordered. There was, of course, a vigorous debate and a significant disagreement between members of

the Court on the question of whether a with prejudice appeal under s.23 of the 2010 Act actually arose in the circumstances of this

case. The argument which found favour with the minority was that a trial judge, properly applying a test which that judge was

required to apply as a result of binding precedent, could not be said to have erroneously excluded evidence. The majority took the

opposite view. But it inevitably follows from the view of the majority, to the effect that the relevant evidence was erroneously

excluded by reason of the application of a test which this Court, by that majority, held to be erroneous, that any retrial must

necessarily be conducted on the basis of the application of what this Court found to be the correct test.

2.8 For reasons which I will address shortly, it was common case between counsel (and I agree) that one of the factors which can

properly be taken into account in determining where the interest of justice lies, for the purposes of deciding whether to direct a

retrial, is the fact that the original ruling of the trial judge was accepted as being correct on the basis of the application of Kenny.

But if there is to be a retrial then it would make a nonsense of the legislation to suggest that such a retrial should be conducted by

applying the test in Kenny. To so require would be direct that a retrial be conducted on the basis of the application of a test which

this Court has held to be erroneous.

2.9 I should also add that it seems to me to follow from the decision of the majority that there must be at least a possibility that

there are some circumstances in which a retrial would and could be directed after a successful appeal by the D.P.P. under s.23 in

which a test, other than the one which appeared to represent the law at the time of the original trial, was applied. If there were no

circumstances in which it could be permissible to direct a retrial where this Court had overruled a previous decision by which the trial

judge was bound then it is hard to see how the section could properly be interpreted as encompassing such a type of appeal in the

first place. To the extent that, on one reading, the judgment of MacMenamin J. might suggest otherwise then I, like O’Donnell J.,

would leave over further consideration of this issue to a case where it turned out to be decisive.

2.10 At the end of the day, s.23 of the 2010 Act is ultimately about the question of whether there should be a retrial. The final order

which the Court is required to make is as to whether such a retrial should be directed. A decision on whether a ruling of the trial

judge, whether on the question of the admission of evidence or in the course of a direction to the jury, was in error is only a means

to that end. If there could never be a retrial in circumstances where this Court overturned a relevant previous ruling which bound the

trial judge, then it is hard to see how there could ever be a proper with prejudice appeal in which this Court was invited to so overrule

such a previous decision for, in those circumstances, and notwithstanding this Court taking the view that the previous decision was

wrong, the Court could never allow the appeal.

2.11 It seems to me to follow that, at least of the level of high principle, it must be possible that there may be circumstances where

there can be a retrial where the Court conducting that retrial would be required to apply a new and different test (either to the

admissibility of evidence or, indeed, to directions given to a jury), because this Court has overturned a previous ruling which had

bound and been properly applied by the trial judge at the original trial. However, and importantly, it seems to me that the fact that a

retrial would be so conducted on a basis different from that on which the original trial was conducted, while not precluding a retrial, is

nonetheless, a factor of some significant weight to be taken into account by the Court in deciding whether it is in the interests of

justice that such a retrial be ordered. I will return to this question at a later stage in this judgment.

2.12 Having made those preliminary observations I now move on to note the factors which might be said to be potentially relevant to

the overall assessment of whether it is, in the circumstances of this case, in the interests of justice to order a retrial.

3. The Relevant Factors

3.1 The starting point has, of course, to be the relevant provisions of the legislation itself. These are to be found in s.23(11) and

s.23(12) of the 2010 Act. Those sections are in the following terms:-

“(11) On hearing an appeal under this section the Supreme Court may—

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

person to be re-tried for the offence concerned if it is satisfied—

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

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in

the interests of justice to do so,

or

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

(12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to—

(a) whether or not it is likely that any re-trial could be conducted fairly,

(b) the amount of time that has passed since the act or omission that gave rise to the indictment,

(c) the interest of any victim of the offence concerned, and

(d) any other matter which it considers relevant to the appeal.”

3.2 In the context of those legislative provisions, and in the circumstances of this case, counsel for the D.P.P. suggested that there

were three factors which favoured the proposition that it was in the interests of justice that a retrial be awarded. I propose dealing

with each in turn and setting out the position taken by counsel for Mr. C. in respect of each factor identified.

3.3 The first factor referred to by counsel for the D.P.P. was the suggestion that Mr. C. can and will receive a fair trial should a retrial

be ordered. I think it would be fair to say that counsel placed particular emphasis on this factor in his argument to suggest that the

overall balance of all relevant factors led to the conclusion that there should be a retrial. Counsel for Mr. C. accepted that there was

no reason why the conduct of any retrial would itself be unfair.

3.4 In passing, it should be noted that there might well be other cases where positions had been adopted by an accused at a trial,

subsequent to the ruling which was the subject of the appeal and placing reliance on that ruling, which might act to the prejudice of

the relevant accused in the event of a retrial. Furthermore, events may have moved on so that evidence which was available at the

original trial may no longer be available, or the like. For these, and doubtless other reasons, there may well be cases where the

relevant accused could argue either that he could not get a fair retrial at all or that the conduct of his defence had been materially

prejudiced by the events which happened to the extent that it would be unjust to order a retrial. However, no such case has been

made in the circumstances of these proceedings. It is accepted that the question of the admissibility of the confession evidence

which was at the heart of this case can and should be assessed by reference to the test identified by the majority in its previous

judgments but also by reference to any other points which might legitimately be raised at any retrial. This Court is not aware of

whether any such additional points arise but it was not suggested that the course of events to date will prevent Mr. C. from relying

on any other points which might legitimately arise.

3.5 However, counsel for Mr. C. did make what seems to me to be a relatively significant point under this heading. While fully

accepting that the question of whether a fair retrial could be conducted was relevant, counsel suggested that it was either

exclusively, or at least mainly, a negative point in the sense that this Court could never regard it as being in the interests of justice

to direct a retrial if a fair trial could not be conducted at all, and the Court would have, it was suggested, to lean heavily against

directing a retrial if by so doing the overall situation was one where the accused had suffered material prejudice. Thus, counsel for

Mr. C. suggested that no great positive weight should be placed on the fact that a fair retrial could be conducted but rather that it

was a factor, if absent, which might necessarily exclude any possibility of a retrial or, at a very minimum in some cases, lean very

heavily against it.

3.6 The second factor identified by counsel for the D.P.P. was the seriousness of the offences and, by implication, the interests of

the victims of those alleged offences. It is fair, I think, to characterise the charges on which Mr. C. faced trial as relating to multiple

offences involving robbery. There were six offences in all involving three incidents, and it is alleged that an imitation firearm was used.

It is in the nature of the offence of robbery that it involves either violence or the threat of violence, although, of course, the degree

of violence used or the extent of the violence threatened can vary significantly from case to case.

3.7 I did not understand counsel for Mr. C. to contest that a charge of robbery involves a serious offence and that it might be

reasonably inferred that an offence involving at least the threat of violence would have a potentially significant effect on any victims.

However, counsel pointed to the fact that no materials had been placed before the Court to enable any more considered a view to be

taken as to the seriousness of the alleged offences or the effect which they might have had on the relevant victims. In those

circumstances, counsel argued that while the undoubtedly serious nature of the offences was a factor which could properly be taken

into account, the weight to be attached to that factor must necessarily be informed by the absence of any particular knowledge

about the specifics of these offences, their effect on the relevant victims and on any other aspect of the interests of those victims.

3.8 The third point relied on by counsel for the D.P.P. was to suggest that the Court should have regard, in its overall assessment, to

the fact that the very point which led the trial judge to exclude the evidence in question (being the fact that the form of warrant

which was used to enter the premises on which Mr. C. was arrested was a form of warrant which was found to be unconstitutional in

Damache v. D.P.P. [2012] 2 I.R. 266) was a point which had not been decided at the time when the events which give rise to the

alleged offences in this case or, indeed, the evidence gathering concerned, occurred. In one sense, while not putting it like this,

counsel suggested that an evolution in the law can cut both ways. If Mr. C. had been tried at an earlier stage (e.g. after the High

Court had given its decision in Damache v. D.P.P. [2011] I.E.H.C. 197 but before this Court had allowed the appeal) then the trial

judge would have been bound by the decision of the High Court to have rejected the objection to the admission of the relevant

evidence at least insofar as it was based on a combined Kenny/Damache type ground. On that basis, counsel suggested that if Mr. C.

was now to have the benefit of Damache (even though it did not form part of the law as it was understood at the time at which the

alleged offences may have been committed or at the time when the relevant evidence was gathered), then equally justice permitted

that he be retried on the basis of a new view of the test to be applied in considering the admissibility of evidence which has resulted

from the decision of the majority in this case.

3.9 On this aspect of the argument put forward by the D.P.P., counsel for Mr. C. disagreed in principle and suggested that the

Kenny/Damache point should not form part of the Court’s assessment.

3.10 Next it is necessary to identify some further factors which counsel for Mr. C. suggested ought properly be taken into account.

3.11 Counsel suggested that the Court should place significant weight on the fact that other accused persons had obtained the

benefit of a Kenny/Damache point to secure their acquittal in the period after Damache had been decided by this Court and before

the earlier ruling of this Court in this case. That much is certainly true. There may have been limitations on the extent to which

persons who did not raise the relevant point at their trial may have been permitted to raise the point on appeal and there were,

undoubtedly, very significant limitations on the extent to which it would have been permissible for someone to seek to reopen a case

finally decided. However, that being said, there can be little doubt but that a number of persons successfully invoked a combined

Kenny/Damache point and were thereby acquitted in circumstances where the D.P.P. does not appear to have sought to invoke a

s.23 appeal to reverse that process.

3.12 In those circumstances, it is argued that it is unfair that Mr. C. should be, as it were, the only person who does not ultimately

obtain the benefit of the point. It is suggested that that issue is of particular strength in this case given that no particular reason

was advanced to suggest why it was Mr. C.’s case which was chosen as a vehicle to seek to bring the issue before this Court.

3.13 I did not understand counsel for the D.P.P. to dispute that some weight might be attached to the point, but counsel did suggest

that it is almost inevitable in the context of the evolution of case law that some case will be the first case in which a point is

successfully made. Furthermore, counsel noted that there will inevitably be people who benefit or fail to benefit by particular points

simply by reason of the happenstance of time. Indeed, in that context, it is apposite to note the partially retrospective effect of

some important, successful appeals brought by accused persons which also had the effect of changing the law as it was understood

to be.

3.14 A recent example can be found in D.P.P. v. Gormley & White [2014] I.E.S.C. 17. In that case, one of the relevant accused

successfully appealed to this Court from a conviction which was significantly influenced by the admission of confession evidence

which had been taken at a time after the relevant accused had sought legal advice, but before that legal advice had become

available. There can be little doubt but that the trial in question was properly conducted on the basis of the law as it was understood

to be at the time of the trial. Nonetheless this court, on final appeal, came to the view that previous authority, which had declined to

go so far as recognising a right to prevent questioning in those circumstances, was insufficient to protect the rights of accused

persons in custody. Despite the fact that the relevant evidence was admitted on the basis of the law as it was understood to be at

the time of the trial in question, this court nonetheless upheld the appeal (on the basis that the trial judge was wrong to admit the

evidence) and directed an acquittal. In that context, timing worked on favour of the accused.

3.15 The next point on which counsel for Mr. C. placed reliance was the fact that any retrial was likely to take place more than four

years after the events giving rise to the alleged offences and three years after the decision of the Circuit Court to acquit. While it

was not suggested that this would impact on the trial as such, nonetheless it was suggested that a significant lapse of time between

an acquittal and a retrial was itself an unfairness or potential unfairness which should be taken into account. In that context, counsel

placed reliance on the jurisprudence in respect of appeals against allegedly unduly lenient sentences which may now be brought by

the D.P.P., such as D.P.P. v. Connolly (Court of Criminal Appeal, Blayney J., ex tempore, 25th November, 1996). It has been accepted

in such cases that the fact that an accused either had not been sentenced to prison at all or had been subsequently sentenced but

had been released, as a result of a sentence which was found to have been unduly lenient, was a factor which the Court can properly

take into account in deciding what alternative sentence is to be imposed. It is, of course, the case that such a factor can rarely be

decisive, for the Court is obliged to impose an appropriate sentence in all the circumstances of the case in the event that the

sentence imposed by the trial judge is found to be unduly lenient. If that means committing someone to prison who was not initially

sentenced to an immediate custodial period or requiring someone to be re-imprisoned who has been released then so be it. However,

it is now established that such a factor can, at least, properly be taken into account.

3.16 Furthermore, it was urged by counsel for Mr. C., and accepted by counsel for the D.P.P., that the lapse of time with which the

Court is concerned in determining whether to direct a retrial needs to be considered on a different basis to the type of lapse of time

and prejudicial consequences which form the subject of the delay jurisprudence of the courts. Lapse of time for the purposes of

considering a retrial is but one factor to be taken into account in an overall assessment of where the interests of justice lie. A lapse

of time which would not be sufficient, in all the circumstances of a particular case, to justify either the prohibition of a criminal trial or

the withdrawal of a trial from a jury by reason of prejudice established at the trial, is quite a different thing from lapse of time, falling

far short of that, which might nonetheless properly be taken into account as part of an overall assessment of where justice lies in the

context of considering whether to direct a retrial. It seems to me that counsel were correct in their submissions in this regard. There

could never be any question of this Court ordering a retrial if the criteria for prohibition were met. If that sort of lapse of time and

potential prejudice were established, in accordance with the jurisprudence of the courts and having regard to all the circumstances of

the case, no retrial could be directed irrespective of any other factors. However, lapse of time which falls short of that level may

nonetheless be taken into account in deciding whether the interests of justice favour a retrial.

3.17 Thirdly, counsel for Mr. C. placed particular weight on the fact that any retrial would require to be conducted on a different basis

to the original trial. The reason why this is so has already been set out in the course of this judgment. It is argued that significant

regard must be had, in the context of determining where the interests of justice lie, to the fact that Mr. C. was tried in accordance

with the law as it was considered to be at the time in question and was properly acquitted on that basis. While counsel accepted

that the fact that there would be a retrial on a different basis in those circumstances was not necessarily decisive, it was urged that

this point was one to which significant weight should be attached. In particular, counsel suggested that there was a significant

difference between a case of this type and a case where, for example, an accused was acquitted by reason of a ruling of a trial judge

which simply involved a misapplication of well established law to the facts of a particular case and where, therefore, any retrial would

be conducted on exactly the same basis as the original trial but without the error which formed the subject of the successful with

prejudice appeal by the D.P.P.

3.18 I think it is fair the characterise the submissions of counsel for the D.P.P. as accepting that this was a factor which ought

properly to be taken into account, but suggesting that the weight to be attached to it was significantly less than that urged on

behalf of Mr. C. As I understand it, counsel argued that the fact that the section contemplates a retrial in circumstances such as this

suggests that it should not be an overriding or dominant factor in the Court’s assessment of where the interests of justice lie.

3.19 To a significant extent, therefore, counsel were agreed as to the factors to be taken in to account although differing as to the

weight to be attached to them. However, before going on to assess those factors, it is important to touch on one issue which also

divided counsel. That question concerns whether, either formally or informally, it can be said that there is a presumption either way.

The question is concerned with whether it might be said that there is a default position either in favour of a retrial or against a retrial

which would require to be displaced by the presence of sufficiently weighty factors pointing in the other direction. In substance, the

question is as to the appropriate starting point for any assessment of where the interests of justice lie.

4. The Starting Point

4.1 It is necessary to commence with the wording of the legislation itself. Shorn of language which is not material to this issue, the

legislation provides that the Court may allow an appeal and quash an acquittal “if it is satisfied … that … it is, in all the circumstances,

in the interests of justice to do so”. In considering whether it is in the interests of justice to quash the relevant acquittal, the Court

is required to have regard to the factors set out in subsection (12). Furthermore, subsection (11) goes on to state that, if the Court

is “not so satisfied”, the acquittal must be affirmed.

4.2 The overarching requirement is, therefore, that the Court is not entitled to allow the appeal and direct a retrial unless satisfied

that it is in the interests of justice so to do. I do not consider it helpful or useful to speak, in that context, of an onus of proof. I, and

other members of the Court, have commented in the course of our earlier judgments in this case on the problems which seem to arise

in the practical application of this legislation. One of the problems thus noted is the question of identifying the evidence or materials

by reference to which the factual judgments which the Court is required to make are to be determined. No evidence, as such, is

placed before this Court on a s.23 appeal other than such evidence as may have been led at the trial.

4.3 Be that as it may, the legislation does require that the Court actually be satisfied of where the interests of justice lie and, in

particular, be satisfied that the interests of justice favour a retrial before the appeal can be allowed. It seems to me to follow that

the Court must do the best it can in forming such a judgment on the basis of all materials properly before it, but there may well be

circumstances where the absence of sufficient materials might legitimately lead the Court to conclude that it could not be satisfied

that the interests of justice favoured a retrial, and that it followed that the acquittal had be affirmed.

4.4 Counsel for the D.P.P. suggested that the section was neutral, neither favouring, on a presumptive basis, a retrial or an

affirmation of the acquittal. I would put the matter somewhat further. Given that this Court is required to be satisfied as to where the

interests of justice lie in order to direct a retrial, I do not think that it can be said that the section is entirely neutral. Rather it seems

to me that, as I have suggested, the absence of adequate materials to enable the Court to form an overall judgment on important

aspects of the question could only lead to an affirmation of the acquittal. Against that background, I now propose to turn to an

assessment of the factors which require to be taken into account in this case.

5. Assessment

5.1 In the context of the criteria by reference to which the interests of justice are to be considered as set out in subs. (12), it is

important to note that the Court is given a very wide brief in that subs.(12)(d) allows the Court to have regard to “any other matters

which it considers relevant to the appeal”. While the Court is, of course, required to take into account the other matters expressly

mentioned in subs.(12), the Court is, nonetheless, in no way confined to those matters, nor, in my view, is the Court confined in

assessing the weight to be attached to those and any other relevant matters in the context of a particular case. I propose to

commence by considering the express factors referred to in the subsection itself.

5.2 Subsection (12)(a) refers to the “conduct” of a retrial and whether such a retrial could be conducted fairly. There was, at the

hearing, some debate about whether it was fundamentally fair that a person might be required to be retried on the basis of an

application of a law which differed from the law as it might have been understood at the time when the original trial was conducted.

That is a point to which I will return. However, it is clear that subs.(12)(a) is not concerned with fairness in that sense, but rather

with whether the conduct of the trial itself can be fair. It was not suggested that a retrial in the circumstances of this case would be

unfair as to its conduct, and therefore, subject to the question of the weight to be attached to that consideration, the criterion

identified at subs.(12)(a) favours a retrial.

5.3 It should be noted that the factor which is required to be taken into account under subs.(12)(b) is the length of time which has

elapsed from the events giving rise to the alleged offence. In the context of this case that length of time is four years. I would not

place a very significant weight on a lapse of time of that extent although some regard should be paid to it. In that context, I am also

satisfied that it is appropriate for the Court, as one of the additional factors which can be taken into account under subs.(12)(b), to

have regard to the length of time which has elapsed since the acquittal of the accused. In this case that period is three years, and

for the reasons already advanced in this judgment, I am satisfied that some regard should be given to that fact. A person who has

had the benefit of an acquittal but has had the possibility of a retrial hanging over them for a period of three years is entitled to have

that fact taken into account. It should be emphasised that neither party can be said to have been at fault in any way in the context

of the length of time which it has taken for this matter to come to final determination. It was inevitable that a case of this type

would take some significant period of time to determine. First, there is the fact that this was the first occasion when the legislation in

question was utilised. For the reasons already addressed in a number of previous judgments in this case and in this judgment, there

are, at a minimum, difficulties with the legislation which made it inevitable that questions would be raised as to whether the legislation

can be applied at all in the circumstances of this case, and how, even if it can, it is to operate in practice. It should be said that the

difficulties with the legislation which have already been identified made those questions significantly more complex and necessarily

added to the length of the process.

5.4 Furthermore, the fact that it was sought to invite this Court to reconsider an important issue in the law of evidence with

significant constitutional considerations inevitably added to the length and complexity of the process. While the length of time which

it has taken was, perhaps, inevitable, it nonetheless seems to me that the Court must have some regard (although I would not place

the weight to be attached to this factor at a very high level) to the fact that Mr. C. was acquitted three years ago and has had,

through no fault of his own, this issue hanging over him since.

5.5 The third specific matter which the Court is required to have regard to is the interests of the victims of the alleged crimes.

Obviously any victim has an interest in seeing that there be a trial on the merits of any person in respect of whom there may be

sufficient evidence to suggest a possible and sustainable verdict of guilty. Insofar as the Court may be required to consider the

interests of the particular victims concerned in these proceedings, it is, as has been pointed out earlier, impossible to go beyond a

general view of the type of effect which crimes of this type generally might have on victims, for the Court has not the benefit of any

detailed information which would allow it to take any more considered view.

5.6 That deals with the specific factors mentioned from (a) to (c) in the subsection. However, I agree that the additional factors

identified by counsel on both sides are also, potentially, matters to which the Court should have regard under subs.(12)(d). In that

context it is necessary to make an overall assessment.

5.7 In my view, the fact, as urged by his counsel, that Mr. C. would transpire to be somewhat unique in not having the benefit of a

Kenny/Damache type argument is a factor which, while far from decisive, must weigh heavily in the balance. I take the view that

such a factor could not be decisive, for if, in truth, as I have already suggested, no successful appeal could be brought in those

circumstances, then it is hard to see how it would have been proper to interpret the section as allowing for an appeal in a case where

the law as it was then understood to be was accepted as having been properly applied. That being said, I do, however, think that it

is a weighty factor on the side of not directing a retrial. I am also inclined to agree with counsel for Mr. C. on the question of the

weight to be attached to the fact that it is accepted that a retrial could be conducted fairly. Some weight must be attached to that

factor which, of course, favours directing a retrial, but I consider that the factor concerned is more likely to weigh against a retrial

where the accused may be able to point to some impairment in his ability to fairly defend. It may be that in some cases such

prejudice may be sufficiently significant that the Court would, on that basis alone, be required to decline to order a retrial. The extent

to which a fair trial can be conducted is, perhaps, properly characterised as being more of a negative factor whose absence would

tend to weigh heavily against directing a retrial but whose presence may not carry quite the same weight in favour of allowing the

appeal.

5.8 Likewise, for the reasons already advanced, I would not place too great a weight on lapse of time, although it is a factor to be

taken into account and it does, for what it is worth, lie against directing a retrial. On a similar basis, and again for the reasons already

advanced, I am satisfied that some weight in favour of a retrial must be attached to the interests of the victims even though it is not

possible to assess the extent of the interests of those victims with any precision due to the absence of any materials relevant to that

question.

5.9 Next, I should say that I do not consider that the fact that Mr. C., at his trial, obtained the benefit of the Kenny/Damache point

by luck in timing is a factor to which any particular weight should be attached. It may, however, be proper to consider that factor as

somewhat mitigating Mr. C.’s point concerning the fact that he alone may be deprived of the benefit of the Kenny/Damache point, for

that too is largely a question of timing.

5.10 The final point relied upon on behalf of Mr. C., being that any retrial would necessarily be conducted on a basis different to that

which would have been understood to have been the correct basis when he was originally tried is, in my view, to a large extent, much

the same point as the one which suggests that Mr. C. alone would be deprived of the benefit of the Kenny/Damache point. In reality,

the suggestion is that significant weight should be attached to the fact that the interests of justice would not be served, in the

absence of some weighty countervailing factor, by Mr. C. being, as it were, singled out for a retrial which, while it would undoubtedly

be conducted in the same way as any trial which took place after this Court’s earlier judgments in this case had been delivered, would

undoubtedly be conducted on a different basis to that which would have been considered to be the correct basis of the law as it was

then understood at the time when Mr. C. first came to trial. In that context, it is, in my view, correctly argued that much greater

weight against a retrial lies in a case such as this as opposed to a case where the retrial would be conducted on exactly the same

basis as the original trial but correcting for an error identified in the manner in which that trial was conducted by reference to the law

as it was then understood.

5.11 I do not, for the reasons which I have sought to set out in respect of each of the factors which might favour a retrial, take the

view that any of those factors are sufficiently weighty to countervail, in the circumstances of this case, that factor. It seems to me

that the balance, therefore, favours not directing a retrial, for I am not satisfied that the interests of justice so require. Before

concluding I propose to make some final observations.

6. Some Observations

6.1 In the circumstances identified in my earlier judgment in this case, the Court accepted that this appeal would proceed in two

phases. Having seen the process to its conclusion I have come to the view that, speaking for myself, I would not favour such a

modular approach were any further appeals under s.23 to come before the Court. In this second module, each of the judges has been

invited to consider whether a retrial should be directed. However, a significant minority of the Court was of the view that either or

both of the issues decided earlier should have been found in favour of Mr. C. so that, on that view, there either was no jurisdiction to

entertain an appeal of this type at all, or even if there were, this Court should not have departed from Kenny. On that basis, and in

the context of a unitary hearing of the appeal, it would have been unnecessary for those judges to have expressed any view on the

question of whether a retrial would have been appropriate. Even if those judges wished to make some observations on that general

question, same could not conceivably have been in the context of actually directing a retrial, but only by way of observation as to

the views which would have been taken in the event that it was felt that an appeal lay and the first leg of the test (being that there

was an error) was met.

6.2 It clearly could never be the case that the ultimate result of an appeal could depend on whether it was conducted in a unitary or

a modular fashion. It is in that context that I cannot fully agree with the view of MacMenamin J. that there may be a justification for

a different approach to the interpretation of the legislation in this module than that which was applied in the previous module.

Notwithstanding that it does, however, seem to me that the process has, with the benefit of hindsight, turned out to be less than

satisfactory. I would not favour a modular trial of a s.23 appeal in the future.

6.3 I should finally add that I agree with the judgments of the Chief Justice and O’Donnell J. I also agree, subject to the minor

reservations addressed earlier, with the judgment of MacMenamin J.

7. Conclusions

7.1 For the reasons set out in this judgment I am not satisfied that, in the words of s.23(11) of the 2010 Act, it is in the interests of

justice to direct a retrial.

7.2 It follows that, in my view, Mr. C.’s acquittal must be affirmed.