Supreme Court of Ireland Decisions

 

AN CHÚIRT UACHTARACH

THE SUPREME COURT

 

Supreme Court Appeal Numbers: S:AP:IE:2024:000046 (J.B.)

S:AP:IE:2024:000061 (S.M.)

Court of Appeal Record Number: 2023/110 (J.B.) and 2023/109 (S.M.)

Central Criminal Court Record No.: CCDP0101/2021

[2025] IESC 10

 

O'Donnell C.J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

 

 

 

 

BETWEEN

 

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

 

                                                                        RESPONDENT

 

– AND –

 

J.B. AND S.M.

 

APPELLANTS

JUDGMENT of Mr. Justice Brian Murray delivered on the 11^th day of March 2025

 

 

 

1.      The Court has decided ([2024] IESC 57) that the essential point made by the Director of Public Prosecutions ('the DPP') at the first stage of this appeal is well founded: the trial judge erred in law when she directed the jury to acquit the appellants on charges of attempted murder, and possession of a firearm with intent to endanger life contrary to s. 15 of the Firearms Act 1925, as substituted by s. 42 of the Criminal Justice Act 2006 and as amended by s. 35 of the Criminal Justice Act 2007, together (in the case of JB) with a charge of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991, as amended.   The appeal having been brought pursuant to the provisions of s. 23 of the Criminal Procedure Act 2010, as amended ('the 2010 Act'), the Court must now decide whether to quash the acquittals and direct a re-trial.  For the reasons I outline below, I have concluded that the acquittals should be quashed and such a re-trial should be directed, and that the Court of Appeal ([2024] IECA 116) was correct in so concluding.

 

2. The facts are outlined in both my earlier judgment and that of Birmingham P. in the Court of Appeal.  What is relevant for present purposes is that the charges arose from the shooting of a teenager, AB, in early 2021.  AB was seriously injured as a result of the attack, in the course of which an automatic firearm was discharged. The evidence was that but for urgent medical intervention AB would have died.  That attempt on AB's life was made in a street near Dublin city centre shortly before 11pm in the evening.  Other members of the public were in the vicinity at the time.

 

 

3.      While the trial judge found at the conclusion of the prosecution case that there was insufficient evidence to go to the jury on the charges, this Court concluded that she erred, in particular, in failing to take account of the potential effect of the inference provisions contained in ss. 18 and 19 Criminal Justice Act 1984 ('the 1984 Act'). These had been invoked by the Gardaí in the course of subsequent interviews with the appellants.  The effect of s. 23(3)(b) of the 2010 Act is that an appeal can be brought under this provision where 'a direction was given by a court during the course of a trial ... directing the jury in the trial to find the person not guilty' if that direction was 'wrong in law' and the evidence adduced in the proceedings was such that 'a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned'.

 

4.      A re-trial does not automatically follow that finding.  Section 23(11) empowers the appellate Court to order a re-trial if it is satisfied that the requirements of s. 23(3)(b) have been met and 'it is, in all the circumstances, in the interests of justice to do so'.  In exercising this power, the Court is required to have regard to the factors identified in s. 23(12).  They are as follows:

 

a)      whether 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 interests of any victim of the offence concerned, and

 

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

 

5.      The principles governing the application of these provisions have been addressed in a number of decisions, including The People (DPP) v. JC [2015] IESC 50, [2017] 3 IR 417, The People (DPP) v. A. McD. [2016] IESC 71, [2016] 3 IR 123 ('A. McD'), The People (DPP) v. TN [2020] IESC 53, The Director of Public Prosecutions v. DK and MK [2021] IECA 32, ('DK') and The People (DPP) v. BK [2023] IESC 38 ('BK').  Observing that each case depends on its own facts and circumstances is to state the obvious, but two propositions emerge from those decisions with particular force.  First, it is the DPP who seeks the quashing of the conviction and re-trial and it is, therefore, a matter for her to persuade the court that this is the order that should be made (BK at para. 10).  Second, it is not the case that the Court should approach an appeal of this kind on the basis that where it is found that there has been (as there was in this case) an error of law by a trial judge in acceding to an application for a direction (or, for that matter, where compelling evidence is found to have been wrongfully excluded) a re-trial should, absent significant countervailing factors, be directed.  This, if nothing else, follows from the consideration that it should not be viewed as routine that the DPP, whenever she is dissatisfied with a ruling by a trial judge and subsequent acquittal, should proceed with an appeal under s. 23 (A. McD at paras. 112 and 114).

 

6.      The specific factors identified in s. 23(12) are a good starting point.  In this case, the DPP says that there is no reason why a re-trial cannot be conducted fairly (s. 23(12)(a)).  This is not seriously disputed.  The focus of the prosecution case was upon whether the accused were the persons who undertook the attack.  The evidence stands largely in the form of CCTV footage and Garda interviews.  It includes forensic evidence and a limited amount of direct witness testimony.   The DPP also emphasises that the events took place in early 2021 and contends that the passage of time between then and any likely re-trial (s. 23(12)(b)) is not such as to justify refusing the relief she claims.  While the appellants stress that it will be into 2025 before any re-trial takes place, I am not persuaded that the passing of time since the events giving rise to the indictment is in any sense inordinate, or that in the case of either appellant anything has happened between then and now that would, in all of the circumstances, either affect their ability to defend themselves or otherwise render it unjust to disrupt their expectation of finality in the outcome of the first trial.

 

7.      Section 23(12)(c) refers to 'the interests of any victim'.  The DPP emphasises the gravity of the injuries suffered by AB and says that his interests weigh heavily in favour of a re-trial.  The appellants stress the absence of any evidence from AB in this appeal, or even any indication as to whether he wishes a re-trial to proceed.  They say that at the first trial he 'exhibited a demonstrable lack of interest in the original set of proceedings', that he did not assist the prosecution case and that his evidence amounted to a professed lack of recollection of the substantive event.  That, they contend, is a factor that weighs against a re-trial.  Without doubt, the refusal of a victim to co-operate with the prosecution may be a factor that militates against a re-trial (that was one of the relevant considerations leading the court to refuse to order a re-trial in DK).  That said, the 'interests of any victim' encompasses more than an assessment of the personal preferences of the victim as to whether there should or should not be a re-trial, but also requires consideration of objective factors including the gravity of the injuries they have sustained consequent upon the alleged offence and circumstances in which it is said to have been committed.  And, of course, AB was not the only victim in this case.  The position of, and impact upon, innocent bystanders (of whom two gave evidence at the trial) must also be taken into account.

 

8.      What happened here was not a minor and wholly private fracas in circumstances in which the victim might not unreasonably wish to have the matter finally disposed of in the interests of good neighbourly relations or otherwise. In that type of case the subjective wishes of the victim might well carry some weight. The present case is, however, a very different one and, as I shall shortly observe, the public interest in prosecuting cases of attempted murder is a very pressing one.

 

9.      The factors iterated in s. 23(12)(a)-(c) are specific examples of the broader demands of the 'interests of justice' referred to in s. 23(11)(a)(ii) of the 2010 Act.  The requirement imposed by s. 23(12)(d) that the court have regard to 'any other matter which it considers relevant to the appeal' is governed by the same imperative.  In that context, counsel for JB highlighted the fact that JB had been in custody for a period of two years awaiting trial in this matter, and made the point that given that he is now in his mid-twenties, the entire process from his arrest, through the trial in March 2023, and the appeals to the Court of Appeal and this Court has been extremely disruptive to his life.  Obviously, a direction that there be a re-trial will add to that.

 

10.  The relevance of that factor depends on the strength of the features of the case that point in favour of a re-trial.  While all cases that have been tried on indictment can be properly described as serious, and while it follows from what I have said earlier that the gravity of an offence will not in itself demand a re-trial in every case, insofar as this appeal is concerned, the nature of the offences and circumstances in which they are alleged to have occurred is central to the calculation of whether a re-trial should be directed.  There is no doubt but that AB was the victim of an attack on a city centre street at a time and in a place where not only was he the intended victim of the shooting, but in which others could also have been seriously injured.  There is an overwhelming public interest in the identification, prosecution and conviction of those responsible for executing that attack.  In circumstances where the court has decided that there is sufficient evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the appellants' guilt of those offences, in which no prejudice has been identified as likely to arise from such a retrial, in which the time that has passed since the incident giving rise to the prosecution is not, in the circumstances, inordinate, a re-trial is appropriate and in the interests of justice.

 

11.  In summary, therefore, I am of the view that as the factors identified in s. 23(12) of the 2010 Act have been satisfied in the present case, it is appropriate and in the interests of justice that this Court should direct a re-trial of the two accused pursuant to the provisions of s. 23(11) of the 2010 Act.

Resilt     Court directs a re-trial of the two accused pursuant to the provisions of s. 23(11) of the 2010 Act