A Supreme Court judge said the prosecution’s application for a retrial should fail after the Court considered an appeal concerning J.C.’s acquittal. Justice John MacMenamin said the balance “overwhelmingly” stood against a retrial, agreeing with the order proposed by his colleagues.
The judgment, dated 22 June 2015, was a second judgment in an appeal brought by the Director of Public Prosecutions under section 23 of the Criminal Procedure Act 2010. MacMenamin said J.C. had been acquitted by direction and was entitled to the same status as someone acquitted by a jury after a full trial. He noted that the trial had been conducted according to the law as it then stood.
The Director sought a retrial after the prosecution succeeded on an issue concerning the exclusionary rule. MacMenamin questioned why the appeal had been brought under section 23 rather than section 34 of the Criminal Procedure Act 1967, which allows a legal question to be referred to the Supreme Court without affecting an acquittal. He raised concern that a retrial could expose an acquitted person to different evidential rules after the law had been reviewed.
He said the Director bore the burden of satisfying the Court that a retrial would be in the interests of justice. Relevant considerations included double jeopardy, legal certainty, whether a fair retrial was likely, the time elapsed, the interests of any victim and other matters relevant to the appeal.
MacMenamin noted that four years had passed since the alleged offences and three years since J.C.’s acquittal. He also recorded uncertainty about whether a witness would be available. No affidavit evidence or other material had been presented to show a specific impact on a victim. He said the absence of such material meant the victim-interest requirement could not support the retrial application.
The judgment discusses alleged robbery or attempted robbery, but does not identify J.C. or provide further case-specific details about the charges. MacMenamin said the seriousness of the charges and the prosecution’s other submissions did not outweigh the factors against a retrial. He reserved further consideration of section 23’s constitutional status for a suitable future case.