The Supreme Court has quashed the directed acquittals of A. McD. on three charges arising from a car fire in an apartment complex car park in Dublin and ordered a retrial. The court held that the trial judge was wrong to exclude CCTV footage and a memorandum of interview from the jury’s consideration.
The appeal was brought by the Director of Public Prosecutions under section 23 of the Criminal Procedure Act 2010, a “with prejudice” route that can result in an acquitted person being retried. The acquittals followed a jury direction at Dublin Circuit Criminal Court in early 2014. The charges were burglary, endangerment and arson. A nolle prosequi was entered on the other indictment counts.
The charges concerned an allegation that, on 19 August 2011, A. McD. entered the car park as a trespasser and set fire to a vehicle, creating a substantial risk of death or serious harm and damaging property by fire. These were allegations, not findings of guilt.
The trial judge excluded CCTV footage after finding that the prosecution had not explained the system’s basic workings or shown whether it recorded automatically. The Supreme Court held that CCTV footage is real evidence rather than hearsay, so evidence about the system’s operation is not required for that distinction. It stressed, however, that footage must still be properly proved, including its provenance and authenticity, and can be challenged on other admissibility grounds. On the evidence given by an investigating garda and the apartment complex’s property manager, the court found the footage had been sufficiently proved.
The trial judge also excluded a November 2011 interview memorandum, expressing concern that section 19 of the Criminal Justice Act 1984 had been invoked despite A. McD. having earlier given an account of his presence at the complex. She was not satisfied beyond reasonable doubt that the later answers were voluntary. The Supreme Court held that the earlier account did not prevent the gardaí from invoking section 19 in the later detention, given new evidence obtained in the intervening period and the accused’s refusal to engage with that evidence in two interviews on 16 November. It therefore found the trial judge wrong in law and said the voluntariness issue did not arise on that basis.
The Supreme Court concluded that the excluded CCTV and/or interview memorandum could qualify as compelling evidence under section 23. Having considered the appeal, it found that a fair retrial could proceed and that the interests of justice supported one. The judgment also cautioned that section 23 is an unusual, consequential power and should not be used routinely.