Denham C.J.
Murray J.
Hardiman J.
O’Donnell J.
McKechnie J.
Clarke J.
MacMenamin J.

Between/

Judgment delivered on the 22nd day of June, 2015, by Denham C.J.

1. This matter returns to the Court on a single issue, for a decision on the interpretation and application of s. 23(11) and (12) of the Criminal Procedure Act, “the Act of 2010”, as to whether, in the circumstances of the case, the acquittal of J.C., the respondent, referred to as “the respondent”, should be quashed.

Background
2. This appeal raised several issues, including:- (a) the scope of the appeals which can be brought to this Court by the D.P.P. under s. 23 of the Act of 2010, and (b) the exclusionary rule.

3. This Court gave its decision on these issues on the 15th April, 2015.

4. At issue was whether an appeal lay under s. 23 of the Act of 2010, and whether the issue of the exclusionary rule could be raised under s. 23 of the Act of 2010.

5. A majority of the Court (Denham C.J., O’Donnell J., Clarke J. and MacMenamin J.) considered that an appeal in relation to the exclusionary rule of evidence could be raised under section 23 of the Act of 2010.

6. The issue of the exclusion of unconstitutionally obtained evidence from a trial, insofar as it related to search warrants, was reviewed by the Court. In essence the question was whether The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110, “Kenny”, was correctly decided.

7. A majority of the Court held that Kenny had been wrongly decided, and set out a new test. Thus, Kenny represented the law for just over two decades in this jurisdiction.

8. Applying the new test to the facts of the case, the majority of the Court was satisfied that the evidence should be admitted. Thus, it was held that, while the learned trial judge was bound by Kenny, nevertheless she erred in her decision to exclude the evidence in the sense of the term in s. 23 of the Act of 2010.

9. In fact, counsel for both parties agreed that it could be said that a trial judge had erroneously excluded evidence, even though the trial judge had applied properly the Kenny test, the case law by which that court was bound.

10. The issue as to whether there should be a retrial of the respondent was left over until after the decision on the above matters.

11. Thus, the Court is required to consider s. 23 of the Act of 2010.

12. Counsel for the appellant submitted that it was in the interests of justice, in all the circumstances of the case, that there be a retrial of the respondent. Counsel for the respondent submitted that it is not in the interests of justice to quash the acquittal and direct a retrial in this case.

13. The relevant portions of s. 23 of the Act of 2010 provide as follows:-

“(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 the Supreme Court.”

14. Section 23 provides as follows:-

“(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.

(13) (a) The Supreme Court may make an order for a re-trial under this section 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.

(b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.”

16. While the appellant has won the appeal on the substantive issues, the Court now has to decide on the order to be made under s. 23(11) and (12).

17. Thus, at the core of the issue is the consideration of “the interests of justice”.

18. In considering “the interests of justice” the list of factors in s. 23(12) is not exhaustive, as emphasised in s. 23(12)(d) which refers to “any other matters which [the Court] considers relevant to the appeal”.

19. While s. 23 alters the previous rule on double jeopardy, such a fundamental principle nevertheless remains a factor in interpreting s. 23 of the Act of 2010.

20. There are several specific factors to be considered under s. 23(12). The first factor is “the amount of time that has passed since the act or omission that gave rise to the indictment”. The jurisprudence relating to prohibiting trials on grounds of delay is not relevant in construing and applying this section. This is a “time” issue to be considered by the Court in all the circumstances of the case. In this case four years has elapsed since the alleged offences, and three years since the appellant’s acquittal in the Circuit Court.

21. Section 23(12)(c) refers to the interests of any victim concerned. As is pointed out in the submissions on behalf of the respondent, while the offence of robbery is a grave offence, the circumstances may vary. In this case, while it is alleged that three persons are identified as injured parties, there is nothing before the Court to indicate the impact of the offences on those persons.

22. It is necessary also to consider whether there are any other relevant matters. There is no doubt that a factor is that the Court has overturned a previously binding precedent: Kenny. Kenny had represented the law for over twenty years. This is a significant factor in the circumstances of the case.

23. Counsel on behalf of the respondent referred to s. 34 of the Criminal Procedure Act, 1967, which provides for the reference of a question of law to this Court “without prejudice” to the verdict of acquittal in the case. Counsel submitted that this procedure would have been eminently suitable for determining the point of law raised on this appeal. The Court was referred to the statement of Henchy J. in The People (D.P.P.) v. Quilligan (No. 2) [1989] I.R. 46 at p. 56

“It would be neither fair nor constitutional if the right of a person acquitted by direction to escape a retrial depended on the mode of appeal chosen by the prosecution”.

25. It was submitted on behalf of the respondent that persons who have been acquitted at trial ought not to be exposed to a possible retrial simply because of the mode of appeal chosen by the prosecution. It was submitted that s. 23(11) and (12) properly interpreted must provide an appropriate safeguard against the possibility of cases being selected for retrial on an arbitrary basis, as s. 34 of the Criminal Procedure Act, 1967 remains in force, and is an option for the D.P.P., and indeed has been invoked since s. 23 of the Act of 2010 came into force.

26. Counsel for the respondent submitted that in considering whether “it is in the interests of justice” to quash the acquittal, the appellant must demonstrate good reason, based on the circumstances, to quash the acquittal. This might include matters such as the nature of the offence, the circumstances of its committal, any aggravating factors, and the impact of the alleged offence on victims.

Decision
27. The Court is given a specific discretion under s. 23 of the Act of 2010, to decide whether there should be a retrial. The Court should be satisfied that, having regard to the matters referred to in s. 23(12) of the Act of 2010, it is, in all the circumstances of the case, in the interests of justice, that there be a retrial.

28. It may be assumed that the respondent would receive a fair trial, in the sense of the procedures of the trial. However, the specific factors referred to in the Act of 2010, and all the circumstances of the case, should be considered when exercising the discretion given to the Court in the statute.

29. Given the fact that:-

(i) This case has changed the law, as previously stated in Kenny;

(ii) if the respondent were re-tried, he would be subject to the new legal principles relating to the exclusion of evidence in search warrant cases, contrary to the situation on his earlier trial;

(iii) three years have passed since the respondent was acquitted;

(iv) there is no specific evidence before the Court as to impact on victims of crime; and

(v) the fact that the appellant chose this mode of appeal should not and does not give rise automatically to a re-trial on the success of the substantive issues raised;

In all the circumstances, in the interests of justice, I would affirm the acquittal of the respondent, and consequently I would not order that the respondent be re-tried for the offences.