Judge refuses retrial of burglary charges

A seven-judge Supreme Court has unanimously refused to order a retrial of a man lawfully acquitted of burglary charges in 2012 under a rule of evidence controversially altered earlier this year by a four to three majority of the court.

Several of the judges expressed concern the DPP’s appeal arising from the man’s acquittal was brought under Section 23 of the Criminal Procedure Act 2010 because that procedure left open the possibility of a not guilty verdict being overturned, and a retrial ordered, under a new and different legal framework brought about by the appeal.

A more appropriate procedure is available under Section 34 of the Criminal Procedure Act 1967, as that allows for a question of law to be referred to the Supreme Court “without prejudice” to an acquittal verdict, Mr Justice John MacMenamim said. He reserved consideration of the constitutionality of Section 23 to an appropriate case if the Section was again invoked in the future.

In her appeal arising from the 2012 acquittal of the man, referred to as Mr C, the DPP had asked the Supreme Court to relax a rule made in the 1990 case of DPP v Kenny, the “exclusionary rule” effectively excluding any evidence obtained in breach of a constitutional right. That rule led to Mr C being lawfully acquitted in July 2012.