THE COURT OF APPEAL
[274/15]
Birmingham P.
Mahon J.
Edwards J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
RESPONDENT
JUDGMENT of the Court delivered on the 20th day of June 2018 by Birmingham P.
1. On 29th January 2018, this Court gave judgment in an application brought by the DPP seeking to quash, on a with prejudice basis, the acquittal of Mr. TN by a jury on the direction of a trial judge on a number of counts alleging offences contrary to provisions of the Waste Management Act. In the course of that judgment, the background to the trial, which took place between 8th and 23rd October 2015, is set out in some considerable detail and it is not proposed to repeat that exercise at this stage. Sufficient for now to recall that the charges in the Circuit Court related to the respondent’s involvement, to use that neutral phrase, in a dumping facility at Kerdiffstown, Naas, County Kildare, between October 2003 and March 2008, at a time when the waste facility was operated by Neiphin Trading Ltd. The charges faced by Mr. TN were that he being then a director, manager or other similar officer of Neiphin Trading Ltd., or purporting to act in such capacity, consented to or connived in the commission by Neiphin Trading Ltd. of the offence.
2. Following the conclusion of the prosecution evidence in the trial, the judge ruled that the prosecution had not established that the accused was a director, manager or other similar officer of Neiphin or had purported to act in any such capacity. The trial court held that the evidence did not go so far as to establish that he was a decision maker within the company with power to direct the whole of the affairs of the company and with the power and responsibility to decide corporate strategy. Accordingly, in its judgment of 29th January 2018, this Court concluded that the trial judge had fallen into error.
3. Prior to the substantive appeal being determined, the respondent had requested that if this Court felt that the judge’s interpretation of the law was erroneous, that a further opportunity would be provided to address a number of questions. These were as follows:
(i) whether there had been evidence adduced on which a jury might reasonably have been satisfied beyond reasonable doubt of the respondent’s guilt in respect of the offences charged;
(ii) whether, in all the circumstances, it was in the interests of justice that Mr. TN be retried.
This Court acceded to that request and a further hearing directed towards these issues took place on Monday 11th June 2018.
4. Some of the arguments addressed to the adequacy of evidence mirror arguments that one would expect to hear in the context of an application for a directed verdict of not guilty. In a situation where one possible outcome of the present application is that these arguments may be addressed again in the course of a direction application or in the course of closing arguments, the Court does not feel that it would be helpful to set out its analysis in any detailed way, lest by doing so it might be seen as being unduly prescriptive. The Court would simply observe that this is a situation where evidence was adduced which, on one view, might satisfy the jury to the extent of being willing to convict, the fact that there is another interpretation that might be open, or that the defence can point to other evidence at trial which they contend supports their position does not mean that this is per se a case that is not suitable for a retrial. The Court has considered carefully the arguments advanced on the key issue whether there was evidence on which the jury could conclude that Mr. TN was a manager or other similar officer or had purported to act in such a manner, and has concluded that is indeed the case and that that position is so clear as to be almost beyond argument. The fact that the defence was in a position to mount arguments to the contrary at trial, are still in a position to make such arguments and will be in a position to do so if there is a further trial does not alter that position. The Court would simply add this observation, though it is perhaps to do no more than state the obvious: if a retrial takes place, it will be open to the defence to canvas all such issues as they wish, to seek a direction if they regard that as appropriate, and to make whatever closing arguments they think fit. The fact that this Court has permitted a retrial does not foreclose on any arguments that the defence want to make.
5. There remains for consideration the question of whether it is, in all the circumstances, in the interests of justice that Mr. TN be retried. In urging a retrial, the DPP says that the offenses in issue are very serious and carry very heavy penalties, including prison sentences of up to ten years. She says that the evidence she wishes to adduce points to deliberate offending of a serious nature over a prolonged period of time. The DPP adds that this is a situation where a retrial can be conducted fairly notwithstanding the difficulties that have arisen. She acknowledges that time has passed, but says this has not resulted in prejudice to the respondent/accused.
6. This last assertion is strongly challenged by the respondent who points to the significant lapse of time that has occurred, the alleged offending having occurred between 2003 and 2008, there was a trial in October 2015, which ended with an acquittal, and if retrial is ordered, it is likely that it will be 2020 before it takes place. They point to the fact that the protracted nature of the proceedings, coupled with the constant reminder of the very heavy penalties, including lengthy imprisonment, to which Mr. TN is exposed must have extremely stressful for him.
7. Addressing the matters identified in s. 23(12), it is the case that there are no individual victims, though individuals living in the area close to the waste facility testified during the trial as to their experience, but environmental damage and pollution impacts on the community as a whole in a negative fashion. In the course of arguments addressed to the issue of whether the acquittal should be quashed and a retrial ordered, both sides, but particularly the respondent, have referred to the judgments of the Supreme Court inDPP v. JC (No. 2)[2015] IESC 50. On behalf of Mr. TN, it is said that the situation that exists now has much in common with JC in that the Court’s interpretation of the statutory provision transcends the facts of the present case and is one of widespread application. This Court does not see JC as analogous. In JC, the offence charged, while not by any means trivial or minor, was, it must be said, fairly routine. It was nonetheless the vehicle availed of by the authorities to invite the Court to reconsider a well-established and fundamental rule of evidence.
8. The situation here is quite different; the charge was a serious one and the trial was a major one, conducted between 8th and 23rd October 2015. The outcome represented a significant setback for the authorities and that they would wish to challenge it was understandable. It must also be acknowledged that if the trial judge’s interpretation stood and came to be regarded as the orthodoxy, this would have had implications for the capacity of the authorities to enforce the environmental code. Indeed, because the phrase “manager or other similar officer” or similar phrases appeared in a number of statues, the implications were potentially wider still. However, what distinguishes JC from this case is that JC stood trial at a time when the law appeared to be well-settled, the trial judge in that case applied what was thought to be the existing law, as she was expected to do, indeed obliged to do, with the result that JC was acquitted. The Supreme Court then departed from its previous decision, so that if JC was to be retried, the retrial would take place against a legal landscape that would have changed. In this case, there was no question of long-established law being changed. Mr. TN, through his lawyers, argued for a particular interpretation of a statutory provision. The trial judge was persuaded by those arguments. In the Court’s view, he was wrong to have been so persuaded. In those circumstances, the Court takes the view that in all the circumstances, this is a matter that should be retried and the merits of the case should be determined by a jury charged in accordance with the interpretation of the law enunciated by this Court. If the trial results in a conviction and there is a sentencing hearing, then, no doubt, the defence will point to the protracted nature of the proceedings and the stress to which the accused has been subjected as a matter that ought properly to be taken into account when sentencing.
9. The Court is satisfied that in all the circumstances of this case, it is in the interests of justice that the acquittal should be quashed and that this Court should direct a retrial. The Court will hear from counsel in relation to any ancillary orders that are required.
