DPP v McD: Court orders retrial, after acquittal, as trial judge had erroneously excluded compelling evidence

Here, the Supreme Court granted the DPP an order under s 23 of the Criminal Procedure Act 2010 directing the retrial of McD. The Court held that the Circuit Court judge had erroneously excluded compelling evidence before directing the jury to return a not guilty verdict. On the evidence in question, the Court held that the trial judge had incorrectly determined that CCTV footage was possibly hearsay evidence and that the investigating gardai had incorrectly invoked s 19 of the Criminal Justice Act 1984 during interrogation.

Law

S 23 of the Criminal Procedure Act 2010 (link) provided a procedure whereby the DPP (or Attorney General, where appropriate) could appeal to the Supreme Court against an acquittal where it was believed that the trial judge had erroneously omitted compelling evidence. Such appeals now go to the Court of Appeal.

S 19 of the Criminal Justice Act 1984 (link) allows a trial court to draw an inference from an accused person’s refusal to give an account of their presence at the scene of a crime. An accused person can not be convicted solely on that inference. It is corroborating evidence.

Background

Gardai arrested McD at a car park in an apartment complex soon after a vehicle there had been set on fire. During questioning, McD stated that he had followed children into the car park to see what they were up to but that he had not been near the car. Gardai arrested McD a second time after they had received CCTV footage from the complex manager showing McD at the car when it was set on fire. At first McD refused to answer questions. The interrogating officers then invoked s 19 of the Criminal Justice Act 1984 informing McD that a court could draw inferences from his failure to give an account for his presence at the crime scene. McD then made an inculpatory statement.

At trial before the Circuit Court, McD argued that the CCTV evidence should be excluded as hearsay as the State had not provided any evidence as to the operation of the CCTV system: whether it was automated or required human intervention. McD also argued that the interrogating garda had incorrectly invoked s 19 of the 1984, as he had given an account of his presence at the scene during his first interrogation. Therefore, McD argued, his inculpatory statement was inadmissible.

The trial judge accepted McD’s arguments. She held that she was bound by DPP v Murphy [2005] 2 IR 125 that the State was obliged to call evidence on the function and operation of the CCTV system, otherwise such evidence could be considered hearsay evidence. The trial judge also held that she was bound by DPP v Devlin [2012] IECCA 70, which she interpreted as authority that s 19 could not invoked where a suspect had given any account for their presence at the scene of a criminal offence. The trial judge directed the jury to return a not guilty verdict.

The DPP appealed that decision under s 23 of the 2010 Act.

Supreme Court

McKechnie J wrote the judgment for the Court. Denham CJ, O’Donnell J and O’Malley J concurred. The Court held that the trial judge had incorrectly interpreted Murphy. Murphy applies to evidence recovered from computer type recording systems where humans input information. In such cases the evidence can be treated as hearsay unless the human element is attested to in court. The Court set out guidelines on the general law on CCTV evidence, [63]:

(i) CCTV footage, as a matter of principle, should be regarded as real evidence and not as hearsay; evidence as to its operation and functionality is therefore not required to establish this;

(ii) If specific circumstances should put this distinction or conclusion in issue, the same should be determined in the normal way;

(iii) Material generated by other machines or devices, such as computers, may either be hearsay or real evidence; this depends on whether or not what is sought to be tendered is the direct product of human intervention;

(iv) Human intervention in this context means that such material has passed through a human mind and is simply reflective of human input;

(v) CCTV footage does not enjoy any evidential presumption, nor should a court take judicial notice of it;

(vi) Rather, it must be proved in an appropriate manner and to the required standard; depending on challenge or concession this will, in part, be case specific;

(vii) In general, its provenance and authenticity must be established, as must any other material requirement normally associated with real evidence, such as relevance, probative value etc;

(viii) Objection to its admissibility may be taken on any sustainable ground, including those covered by the exclusionary rules, or such other as may arise on either the facts or the law of the case;

(ix) As with any piece of admissible evidence, its weight, value and credibility are matters for the jury;

(x) Because of its potency, care must be exercised to ensure the overall integrity of such evidence.

By those guidelines, the CCTV evidence was admissible.

On s 19 0f 1984 Act, the Court stated that an accused person could easily circumvent the operation of s 19 if it was only required of them to give any manner of an account of their presence at the scene. Therefore, “it must be the case that a minimum level of plausible engagement is required before an account can satisfy the requirements of section 19 of the 1984 Act. What that necessarily will be will involve a consideration of the entirety of the circumstances presenting in each case”[101].

In the circumstances of this case, McD’s account during his first interrogation, that he had not been near the burnt car completely contradicted the CCTV evidence showing him at the car prior to the fire. Therefore the interrogating garda did not incorrectly invoke s 19, and McD’s inculpatory statement was admissible.

On s 23 of the 2010 Act, McKechnie J referred to the only previous case where the Court had addressed that provision: DPP v JC (post). In that case the Court scrutinised s 23 and expressed “divergent views”. McKechnie stated: “I wish to emphasise in the strongest possible terms that this provision stands outside what is normative in our criminal justice system. Accordingly, I would deprecate the random or routine use of the section” [112].

However, as the trial judge had erroneously excluded both the CCTV evidence and McD’s statement, and as McD had not advanced significant reasons not to do so, the Court granted the DPP an order for a retrial.

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