About this case:

• Citation:
  [2025] IESC 32
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering judgment for the Supreme Court, Ms Justice Iseult O’Malley confirmed that the Criminal Procedure Act 2010 “establishes exceptions to the status of finality conferred on jury verdicts by the common law, but the exceptions should be seen as arising in certain limited circumstances only, where the interests of justice require the reopening of a jury verdict. That means more than simply a finding by an appellate court of error on the part of a trial judge, even if the error resulted in a direction or the exclusion of compelling evidence.”

Background

In 2018, a controlled delivery of a parcel of methamphetamine which was addressed to the appellant’s co-accused was made by a member of An Garda Síochána posing as a postman.

The garda asked a woman who answered the door whether the co-accused resided there. The appellant subsequently came to the door, identified himself as the person named on the package and signed for same.

Gardaí then searched the premises, finding what appeared to be cannabis and amphetamines, drug paraphernalia, plastic bags, multiple phones and other items in the appellant’s bedroom. In his co-accused’s bedroom, electronic scales, plastic bags, and what appeared to be cannabis, crack cocaine and amphetamines were found.

Gardaí formed a presumption under s.15 of the Misuse of Drugs Act 1977 that the quantities of certain of the suspected drugs found were intended for sale or supply to others.

During interview, the appellant admitted that the items found in his bedroom were his but denied having them for sale, claiming that they were for his personal use. He further denied that the package was his, maintaining that he had only been asked if the address on the parcel was correct and had signed for same using his own name.

The appellant and his co-accused were charged with offences under the 1977 Act.

The trial

At trial in 2023, the prosecution proposed to adduce evidence before the jury of the fact that the appellant had pleaded guilty to two s.15 charges in respect of the cannabis and amphetamine found in his bedroom, notwithstanding that the trial was proceeding only on the basis of charges relating to the package of methamphetamine.

The prosecution’s case was that the appellant and his co-accused had engaged in a joint enterprise and that the appellant, in receiving the package on behalf of his partner in the enterprise, had demonstrated that he was acting in concert with him.

The defence argued that there was a dispute about the circumstances of the delivery of the package and that the proposed evidence relating to the appellant’s other pleas would be highly prejudicial and would in effect, tell the jury that the appellant was a drug dealer while not being probative of anything in relation to the package.

The trial judge observed that the case related to the discovery of the methamphetamine in the package and centred on the disputed evidence related to the controlled delivery. In those circumstances, she considered that the prejudicial effect of the evidence of the guilty pleas relating to the drugs found upon searching the bedrooms would outweigh its probative value in relation to the matters at issue and refused to admit such evidence.

The jury returned verdicts of not guilty, and the prosecution appealed the acquittal on a point of law to the Court of Appeal in reliance on s.23 of the Criminal Procedure Act 2010.

Court of Appeal

On appeal, the DPP contended that the ruling of the trial court had erroneously excluded evidence that came within the definition of “compelling evidence” in s. 23(14) of the 2010 Act, as it showed inter alia that at the time of the delivery of the parcel, the appellant intended to sell or otherwise supply its contents and rebutted a defence of innocent mistake on part of the appellant in signing for the package.

The Court of Appeal rejected the appellant’s argument to the effect that the decision of the trial judge, being an exercise of judicial discretion, did not concern a point of law and was therefore not amenable to an appeal by the prosecution under s.23(1).

The Court of Appeal ordered a retrial having concluded that the evidence was reliable and highly probative of the question of whether the appellant was in possession of drugs for the purpose of trade, and that it substantially advanced the prosecution case without causing any “marked prejudice” to the appellant.

Issues on appeal

The appellant appealed to the Supreme Court, with the first issue for determination being whether, in a case where the accused was acquitted by a jury after the exclusion of admissible evidence, the DPP may bring a “with prejudice” appeal against the acquittal.

The second and third issues concerned whether, if it was correct to entertain the appeal, the Court of Appeal was also correct to find that the evidence was erroneously excluded and if that ruling was correct, whether it was correct to allow the appeal and to order a retrial.

The Supreme Court

As to the first issue, Ms Justice O’Malley was satisfied that a prosecution appeal in the circumstances was not excluded by s.23 of the 2010 Act, noting that judges do not exercise judicial discretion at large and have regard to the relevant circumstances and factors.

The judge considered that the issue of whether evidence is more prejudicial than probative involves consideration of the purpose for which the evidence is to be adduced and its relevance to a matter in dispute, as well as consideration of the potentially prejudicial effect on the defendant, “a decision based on criteria established in law and one that has legal consequences” and one which is “amenable to an appeal on a point of law if the party aggrieved by it can point to an error of law in the manner in which it was reached”.

As to whether the trial judge’s ruling was erroneous, the Supreme Court observed that all probative evidence is prejudicial and that it was not entirely clear why the trial judge reached the conclusion that she did as she had not adequately analysed its potential probative value as opposed to its prejudicial effect. 

In this regard, Ms Justice O’Malley explained that the prejudice that must be avoided “is unfair prejudice created by evidence that does not otherwise substantially advance the case being made. Prejudice arising from probative evidence is inevitable.” 

In its consideration of the final issue, the court had regard to the relevant jurisprudence, concluding that as it was the DPP who was seeking the retrial, it was for her to persuade the Supreme Court that the order should be made.

Ms Justice O’Malley highlighted that the Supreme Court does not approach the kind of appeal before it on the basis that where compelling evidence has been erroneously excluded, a retrial should generally be ordered in the absence of significant countervailing factors.

The judge observed that the cases which have given rise to written judgments on the issue of a retrial order under s.23 have concerned trials where the trial judge gave the jury a direction to acquit that was wrong in law, but that the instance case may be the first concerning a ruling that is covered by s.23(3)(a), being the erroneous exclusion of evidence, in circumstances where the ruling did not lead to a direction to acquit.

Noting that the situation was now, in effect, that the DPP sought a second opportunity to prosecute the appellant with a strengthened case, the Supreme Court was satisfied that it was required to pay “particularly close attention” to the question of whether, in the circumstances, it was in the interests of justice to order a retrial.

Emphasising that the exceptions to the finality of jury verdicts established by the 2010 Act arise in limited circumstances only and where the interests of justice require the re-opening of a verdict, Ms Justice O’Malley opined that it was possible that the jury did not accept beyond reasonable doubt the evidence relevant to the appellant’s taking possession of the parcel, being the evidence that he identified himself as and signed in the name of his co-accused.

The judge concluded that if this was the case, the excluded evidence, which could have been supportive of the mens rea of the appellant, would not have changed those factual matters.

Having regard to the facts and the parties’ submissions, the court concluded that this was a fairly standard prosecution involving the alleged possession of a quantity of drugs, the value of which was in no way remarkable, and that it was not in the interests of justice to routinely order retrials in such cases, “particularly where the individual concerned has been acquitted on the merits by a jury”.

Conclusion

Accordingly, the Supreme Court allowed the appeal, set aside the order for retrial and affirmed the appellant’s acquittal.

The Director of Public Prosecutions v J.S. [2025] IESC 32