Retrial refused in burglary case over admissibility of evidence ruling

A seven-judge Supreme Court has unanimously refused to order a retrial of a man lawfully acquitted of burglary charges under a rule of evidence altered earlier this year by a four to three majority of the court.

Several of the judges expressed concern the DPP’s appeal arising from the man’s acquittal in 2012 was brought under Section 23 of the Criminal Procedure Act 2010 because that procedure left open the possibility of a not guilty verdict being overturned, and a retrial ordered, under a new and different legal framework brought about by the appeal.

A more appropriate procedure is available under Section 34 of the Criminal Procedure Act 1967, as that allows for a question of law to be referred to the Supreme Court “without prejudice” to an acquittal verdict, Mr Justice John MacMenamim outlined.

He reserved consideration of the constitutionality of Section 23 to an appropriate case if the section was again invoked in the future.

In her appeal arising from the 2012 acquittal of the man, referred to as Mr C, the DPP had asked the Supreme Court to relax a rule made in the 1990 case of DPP v Kenny, the “exclusionary rule” effectively excluding any evidence obtained in breach of a constitutional right. That rule lead to Mr C being lawfully acquitted of burglary charges in July 2012.

Last April, in a decision with major implications for the conduct of criminal prosecutions, the majority court introduced a less stringent rule governing admissibility of evidence in criminal trials.

The new rule permits evidence gathered in breach of constitutional rights to be admitted if the prosecution can establish the breach was due to inadvertence or derived from later legal developments.

In a minority judgment, Mr Justice Adrian Hardiman said the new rule would effectively give members of a "privileged and legally empowered group" a defence of: "I didn't know it was against the law".

After the April decision, the Supreme Court heard arguments on the DPP’s application for a retrial of Mr C.

In judgments on that issue on Monday, all seven judges refused to order a retrial and affirmed his acquittal. The judgments centred on interpretation of Section 23 which allows the DPP or Attorney General appeal, in certain circumstances, an acquittal on a point of law to the Supreme Court.

The Chief Justice, Ms Justice Susan Denham, who formed the April majority court with Mr Justice Donal O'Donnell, Mr Juice Frank Clarke and Mr Justice John MacMenamin, said the interests of justice required the acquittal be affirmed and a retrial be refused.

That decision was based on factors including the Supreme Court’s alteration, in this case, of the law in a manner which overturned the previously binding 1990 precedent. If the man was retried he would be subject to new legal principles governing exclusion of evidence which had not applied at his trial, she said. Other factors included that his acquittal was three years ago.

Mr Justice O’Donnell said the court has “very broad” powers whether or not to order a retrial, this case has an “undoubted” systemic importance and there was no reason to single Mr C out for a retrial.

Mr Justice Frank Clarke, reacting to suggestions there may be some uncertainty about the new legal test for admission of evidence, said the majority court members had all adopted the test set out in his judgment last April.

Mr Justice Hardiman, who with Mr Justice John Murray and Mr Justice Liam McKechnie strongly dissented from the April majority decision, said there was no jurisdiction under which the court could order a retrial and "no precedent", even in countries that permit retrial after a successful appeal against acquittal, "for a retrial after an acquittal and after the law had been changed to favour the prosecution".

Mr Justice Murray said a retrial would be “an appalling prospect from the perspective of the rule of law”.

Mr Justice McKechnie said the decision to allow the 1990 Kenny decision be considered separately from the issue of a retrial in this case led to use of the “utterly futile” procedure under Section 23 instead of the appropriate procedure under Section 67.

The majority decision amounted to a public declaration by the Supreme Court that, but for the 2012 ruling excluding certain evidence in this case, there was in fact sufficient evidence on which a jury might reasonably have convicted the man, he said.

The Supreme Court now must not only dismiss the appeal but affirm the acquittal and uphold the man’s innocence, this outcome was “illogical, irrational and bordering on being farcical” and there was no means by which the man could take steps to re-establish his good name.

Mr C was acquitted in July 2012 after the trial judge ruled gardaí unlawfully entered his home under a warrant issued under Section 29.1 of the Offences Against the State Act 1939, which Section was declared unconstitutional by the Supreme Court in the separate Damache case. The Damache ruling was given in February 2012 after gardaí raided Mr C’s home but before his trial.