Supreme Court: Man acquitted of burglary and arson must be retried

Granting an appeal brought by the Director of Public Prosecutions, the Supreme Court has ordered the retrial of a man who had previously been acquitted of burglary and arson in Dublin Circuit Criminal Court.

Delivering the unanimous judgment of the four-judge Court, Mr Justice William McKechnie held that the ruling of the trial judge to exclude the CCTV footage and the memorandum of the man’s Garda interview from evidence “was erroneous in a point of law”, and that a retrial was therefore appropriate in all the circumstances.


In early 2014, at Dublin Circuit Criminal Court, A McD was found not guilty by a jury, on a direction of the trial judge, in respect of:

  1. Burglary contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001;
  2. Endangerment contrary to section 13 of the Non-Fatal Offences Against the Person Act 1997; and
  3. Arson contrary to section 2(2) of the Criminal Damage Act 1991.
  4. The Director of Public Prosecutions claimed that the trial judge, in acceding to the applications made on behalf of the accused, erroneously excluded “compelling evidence” within the meaning of section 23(3)(a) and (14) of the Criminal Procedure Act 2010:

    First, certain CCTV footage which the trial judge ruled inadmissible during the course of a voir dire; and, secondly, a certain memorandum of interview which was excluded, when the issue of its admissibility arose, on the basis that the provisions of section 19 of the Criminal Justice Act 1984 had been wrongfully invoked and that there was therefore a doubt as to whether the accused person’s responses in the interview had been given voluntarily.

    As there was no further evidence of value against the accused, the trial judge directed the jury accordingly.

    The DPP took objection to these evidential rulings which directly led to the non-guilty verdicts being returned, and decided to invoke the provisions of section 23 of the Criminal Procedure Act 2010, to appeal to the Supreme Court from the rulings so made.

    The DPP also sought to have the accused re-tried for the offences above.

    The CCTV Footage

    The Supreme Court held that the ruling of the trial judge on the admissibility of CCTV footage was incorrect, as:

    (i) CCTV footage, as a matter of principle, should be regarded as real evidence and not as hearsay; evidence as to its operation and functionality is therefore not required to establish this;

    (ii) If specific circumstances should put this distinction or conclusion in issue, the same should be determined in the normal way;

    (iii) Material generated by other machines or devices, such as computers, may either be hearsay or real evidence; this depends on whether or not what is sought to be tendered is the direct product of human intervention;

    (iv) Human intervention in this context means that such material has passed through a human mind and is simply reflective of human input;

    (v) CCTV footage does not enjoy any evidential presumption, nor should a court take judicial notice of it;

    (vi) Rather, it must be proved in an appropriate manner and to the required standard; depending on challenge or concession this will, in part, be case specific;

    (vii) In general, its provenance and authenticity must be established, as must any other material requirement normally associated with real evidence, such as relevance, probative value etc;

    (viii) Objection to its admissibility may be taken on any sustainable ground, including those covered by the exclusionary rules, or such other as may arise on either the facts or the law of the case;

    (ix) As with any piece of admissible evidence, its weight, value and credibility are matters for the jury;

    (x) Because of its potency, care must be exercised to ensure the overall integrity of such evidence.

    The Memorandum of Interview

    The Supreme Court was satisfied that the trial judge misinterpreted section 19 of the Criminal Justice Act 1984 and was wrong in law to conclude that the Gardaí had no jurisdiction to invoke section 19 of the Criminal Justice Act 1984.

    As such, Justice McKechnie stated that it followed “from this conclusion that no question arises as to whether or not it could be said that, by virtue of this invocation, the alleged confession was involuntarily obtained”.


    With regard to section 23(12) of the Criminal Procedure Act 2010, the DPP submitted, inter alia, that any retrial could be conducted fairly, that the lapse of time since the events in question was not such that the recollection of events by the relevant witnesses was likely to have been adversely impaired by reason of time, that the physical exhibits had been retained and available for inspection, and that the nature of the offences in question were such that a strong public interest in favour of the prosecution of the person alleged to be responsible still existed.

    Thus it was submitted that it is in the interests of justice that a retrial be ordered.

    Justice McKechnie was satisfied that “in light of the manner in which the parties have addressed section 23 of the Criminal Procedure Act 2010… and from a review of the evidence, that a retrial should be ordered and that the same can be conducted in accordance with due process”.

    In conclusion, the Supreme Court held that the ruling of the trial judge on both the CCTV footage and the memorandum of the interview “was erroneous in a point of law and that, as a result, what was excluded from the jury’s consideration… could correctly be considered as ‘compelling evidence’ within the meaning of that term as contained in section 23 of the Criminal Procedure Act 2010”.

    Accordingly, a retrial of the case was so ordered.

    • by Seosamh Gráinséir for Irish Legal News
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