The Court of Appeal has ordered a retrial of C.C. and M.F., ruling that a fair trial could take place in January 2017 over a 2005 tiger kidnapping. The order followed an earlier ruling that a trial judge had wrongly excluded telephone evidence relied on by the prosecution.
The judgment, delivered on 21 July 2016, concerned an application by the Director of Public Prosecutions under section 23 of the Criminal Procedure Act 2010. The court had already found error in the exclusion of the telephone evidence. At the further hearing, it considered whether the acquittals should be quashed and a retrial ordered.
The court recounted that five people, including C.C. and M.F., went on trial in 2009. They were convicted and sentenced to lengthy prison terms, but their convictions were quashed in April 2012 on grounds associated with the Damache case. Subsequent proceedings included a retrial that ended in a jury disagreement in December 2013 and another retrial in January 2015. At that trial, Judge Mary Ellen Ring excluded the telephone evidence after a voir dire; the Court of Appeal later held that decision was wrong.
In deciding whether a further trial was in the interests of justice, the court considered the time since the offence, whether a retrial could be fair, and the victims’ interests. The kidnapping occurred on 13 March 2005, and any retrial would not take place before 27 January 2017. The judges also recognised the stress of having an acquittal under challenge and said there was no real dispute that the incident had profoundly affected the victims’ family.
C.C. and M.F. argued that memories would have faded and that some witnesses would be testifying for the sixth or seventh time. They also raised unavailable records relating to whether a particular cell site had been interrogated and how a call might have been directed to it. The court said the records situation had not changed since earlier trials and maintained that the issue went to the weight of the evidence rather than its admissibility. It was not persuaded that fading memories made a fair trial impossible, citing both the traumatic nature of the events for some witnesses and the technical character of other evidence.
The respondents also argued that legal developments could change what evidence the prosecution might seek to introduce at a new trial. Counsel for C.C. said interview material could allow the prosecution to avoid calling C.C.’s partner, whose evidence at an earlier trial had supported C.C.’s account of travelling with her that evening.
The court described the offence as exceptionally serious and concluded that, despite the unusual procedural history and the respondents’ objections, a fair trial was possible. It ordered a retrial, finding that the interests of justice clearly favoured one. The judgment did not decide guilt or determine what evidence would be admitted at the retrial.