The Court of Appeal has refused the Director of Public Prosecutions’ appeal seeking retrials for DK and MK, although it held that the trial judge erred in directing the jury to acquit them of false imprisonment charges.
The judgment, delivered on 9 February 2021, concerned the prosecution’s appeal under section 23 of the Criminal Procedure Act 2010. DK and MK had been found not guilty by direction after a six-day trial in the Circuit Criminal Court in Limerick in November 2018. The alleged victim, DC, had refused to answer questions at trial, including questions from defence counsel.
The prosecution case was that, in September 2015, DC was taken to Caledonian Park, also called Cal’s Field, and later to MK’s house, where he was detained. The allegations included an assault by MK’s son, identified in the judgment as A. These were allegations, not findings of guilt.
The trial judge admitted four statements DC had made to gardaí under section 16 of the Criminal Justice Act 2006. The statements described the alleged detention and assault. The trial judge later concluded that, despite evidence capable of going to the jury, it would be dangerous to let the case proceed because DC could not be meaningfully cross-examined and the remaining evidence and inconsistencies created a risk of an unsafe conviction. The judge directed acquittals without withdrawing the section 16 ruling.
The Court of Appeal found that this was an error of law. It said the trial judge had correctly determined that the admitted statements and other evidence met the threshold for consideration by a jury. A witness’s blanket refusal to answer questions, inconsistencies in an admitted statement, and an expression of fear did not, in the circumstances, establish the exceptional unfairness needed to withdraw the case from the jury.
However, the court declined to order retrials. It considered the combined effect of the prospect of a third trial, the passage of at least six years since the events, changes in DK’s circumstances following a later conviction, the particular position of MK, and DC’s refusal to give evidence at the second trial. The court said those factors together meant a retrial would not be in the interests of justice. It therefore refused the prosecution appeal, leaving the directed acquittals in place.