The Court of Appeal has affirmed the acquittal of R. McC. on a charge of blackmail, extortion and demanding money with menaces, despite finding that the trial judge was wrong to exclude evidence of a phone conversation monitored by Gardaí.
The Director of Public Prosecutions brought a “with prejudice” appeal under section 23 of the Criminal Procedure Act 2010, seeking to have the acquittal quashed and a retrial ordered. The appeal concerned a single charge arising from an alleged demand for €50,000 to €60,000 from veterinary inspector Michael Heelan in County Monaghan on 27 April 2012. R. McC. was acquitted by direction at Monaghan Circuit Court in October 2015.
The prosecution’s account, set out to the trial judge, was that Heelan had been in a car with former senator Francis O’Brien when O’Brien made a call using the car’s Bluetooth system. Heelan was said to have seen R. McC.’s name on the car display and heard the caller direct O’Brien to a shed near an old graveyard. Heelan then found bags containing veterinary items there. Gardaí arrested O’Brien shortly afterwards. Heelan was wearing a Garda-supplied recording device, and officers monitored the journey remotely.
At a pre-trial hearing, the trial judge excluded the phone conversation audible in the car and call-data records. The judge later refused the prosecution’s request to reopen those rulings. The prosecution called no evidence before the jury, which was directed to acquit.
The Court of Appeal rejected the argument that Gardaí had intercepted the call in breach of the 1993 and 2009 legislation. It said officers had not intervened in or involved themselves in the conversation; the call was not intercepted, and the evidence was not inadmissible on that ground. The court also noted that the trial judge’s separate requirement for evidence that the computer generating call records was working properly had been erroneous in light of an earlier Court of Appeal decision.
However, the statutory appeal could succeed only if the excluded evidence amounted to “compelling evidence” and it was in the interests of justice to order a retrial. The court said that, with no evidence called before the jury and Heelan never called to testify, it could not treat the excluded material, considered on its own, as compelling evidence capable of supporting a conviction beyond reasonable doubt. It therefore affirmed the acquittal. The court did not order a retrial or determine R. McC.’s guilt.