The Supreme Court has ruled that the Director of Public Prosecutions had no right under section 29 of the Courts of Justice Act 1924 to appeal a Court of Criminal Appeal decision that quashed Keith O’Callaghan’s conviction and ordered a retrial.
In a judgment delivered on 16 January 2004, Chief Justice Keane said the Supreme Court could not hear the DPP’s appeal. The Court of Criminal Appeal had ordered a retrial on a separate ground, and the DPP was not asking the Supreme Court to overturn that order. Instead, he sought a ruling on whether evidence about an earlier encounter could be admitted at the retrial. Keane said that would amount to a consultative jurisdiction the Supreme Court had not been given by the Oireachtas.
O’Callaghan had been convicted at a second trial in Waterford Circuit Court of causing damage by fire to a dwelling house in Waterford on 25 November 1996. The jury in his first trial could not agree. He was sentenced to four years in prison.
At the second trial, the prosecution called Patricia Purcell, who said she had lived in the house with her two children until about mid-November 1996. Her evidence described an encounter at her door on 29 October 1996 with a man she later identified as O’Callaghan. The trial judge admitted the evidence as potentially relevant to motive and as part of the res gestae, while accepting it was more prejudicial than probative.
The Court of Criminal Appeal later quashed the conviction and ordered a new trial. It concluded that a ruling excluding the evidence at the first trial meant its admissibility was res judicata at the second trial. It did not decide whether the evidence was relevant or whether its prejudicial effect outweighed its probative value. The appeal court also allowed the appeal on a separate ground concerning the trial judge’s direction on the prosecution’s burden of proof.
The DPP obtained a certificate identifying a point of exceptional public importance about the effect of the first trial judge’s ruling. The Supreme Court considered the preliminary question of its jurisdiction before reaching that certified point. It held that section 29 did not give the DPP a right of appeal in these circumstances, and it did not decide the evidence-admissibility question. The order for a retrial therefore remained in place.