Contains public sector information licensed under the Open Justice Licence v1.0.
The Director of Public Prosecutions v JS (Approved)
Factual and Procedural Background
On 1 November 2018 customs officers intercepted a postal package from Poland containing methamphetamine valued at approximately €6,000. The parcel was addressed to the Appellant’s housemate (“the co-accused”) at a shared residence in The City. The next day Gardaí conducted a controlled delivery. According to prosecution evidence the Appellant identified himself as the addressee and signed for the package using the co-accused’s name. A subsequent search of the house uncovered cannabis, amphetamine, drug-dealing paraphernalia and cash in both bedrooms.
The Appellant pleaded guilty long before trial to two counts of possession with intent to supply relating to the drugs in his own bedroom. At trial (January 2023) only counts 5 and 6—possession of the postal methamphetamine and possession with intent to supply—remained. The trial judge excluded all evidence of the Appellant’s earlier guilty pleas and of the drugs/paraphernalia found in the bedrooms, holding the material to be more prejudicial than probative. The jury later acquitted the Appellant on the remaining counts.
Relying on s. 23 of the Criminal Procedure Act 2010, the Respondent appealed to the Court of Appeal, which ruled that the trial judge had erroneously excluded “compelling evidence” and ordered a retrial. The Appellant now appeals to the Supreme Court.
Legal Issues Presented
- Whether, after a jury acquittal that followed a discretionary exclusion of evidence, the Respondent may bring a “with-prejudice” appeal under s. 23 of the Criminal Procedure Act 2010.
- If such an appeal lies, whether the trial judge erred in law by excluding the bedroom-search evidence and the Appellant’s related guilty pleas.
- If error is established, whether it is in the interests of justice to quash the acquittal and order a retrial.
Arguments of the Parties
Appellant's Arguments
- Section 23 is a narrow, penal exception to the principle of finality and should be construed strictly; it does not cover mere disagreements with a trial judge’s discretionary balancing of probative value and prejudice.
- An appellate court should intervene only where a trial judge acted non-judicially or committed a fundamental legal misdirection; otherwise the acquittal must stand.
- European Convention jurisprudence (Bujinita v. Moldova) favours legal certainty and discourages reopening verdicts merely because a prosecutor disagrees with a court’s fact/law assessment.
- The excluded material lacked the statutory hallmarks of “compelling evidence” and carried substantial risk of unfair prejudice tantamount to adducing previous convictions.
- Even if error existed, factors such as modest drug value, lapse of five years, absence of a direct victim and the Appellant’s prior sentence on other counts make a retrial unjust.
Respondent's Arguments
- A discretionary evidentiary ruling can amount to an error of law when the judge misapplies the probative/prejudicial balancing test; s. 23 therefore permits the appeal.
- The bedroom drugs and paraphernalia were contemporaneous with, and highly probative of, the Appellant’s intent regarding the package and directly rebutted his “innocent mistake” defence.
- Prejudice here is inherent but not “marked”; any risk could have been managed by directions to the jury.
- Appellate courts routinely review such rulings (Carney, Almasi, McHugh); failure to consider probative strength is itself legal error.
- Given the seriousness of methamphetamine trafficking, public interest favours a retrial, which can be fairly conducted despite delay.
Table of Precedents Cited
Precedent | Rule or Principle Cited For | Application by the Court |
---|---|---|
Attorney General v. Joyce and Walsh [1929] IR 256 | Evidence of other crimes is admissible if relevant to a fact in issue or to rebut defences. | Cited by the Court of Appeal and Supreme Court to support admissibility of bedroom-search evidence. |
People (DPP) v. Almasi [2020] IESC 35 | Probative/prejudicial balancing; “marked prejudice” test. | Provided the metric for assessing whether prejudicial effect outweighed probative value. |
People (DPP) v. Meleady (No. 3) [2001] 4 IR 16 | Trial judge’s overriding duty to exclude evidence where prejudice outweighs probative value. | Cited by the Appellant to defend the trial judge’s discretion. |
People (DPP) v. Carney [2011] IECCA 53 | Balancing discretion must be exercised judicially; appellate review available. | Relied on by both parties to illustrate permissible appellate scrutiny. |
R v. B [2008] EWCA Crim 1144 | English threshold for prosecution appeals against discretionary evidentiary rulings. | Used comparatively by the Appellant to argue for a high Irish threshold. |
People (DPP) v. DMcG [2018] IECA 86 | Appellate courts are slow to disturb significant trial-level discretion. | Cited in support of deference to the trial judge. |
People (DPP) v. Limen [2021] 1 ILRM | Comprehensive summary of admissibility of misconduct evidence. | Framework adopted in Supreme Court analysis. |
DPP v. Shannon [2016] IECA 242 | Legitimate exercise of discretion where incidents are probatively linked. | Highlighted by Appellant to show permissible rulings. |
People (DPP) v. McNeill [2011] 2 LR 669 | Purpose for which other-acts evidence is offered is crucial. | Appellant argued the excluded material failed this purpose test. |
DPP v. TN [2020] IESC 53 | Guidance on ordering retrials under s. 23(11). | Supreme Court used its reasoning to assess interests-of-justice. |
People (DPP) v. McHugh [2024] IECA 176 | Probative/prejudicial assessment is a judicial evaluation “not discretion”. | Quoted by Respondent to justify appellate intervention. |
R v. Gurney [1998] 2 Cr App R 242 | Cash as probative of intent to supply. | Analogous authority for admitting cash/paraphernalia evidence. |
R v. Yalman [1998] 2 Cr App R 269 | Drug-use paraphernalia can rebut defence of duress/ignorance. | Cited in argument for relevance of bedroom items. |
Makin v. Attorney General of New South Wales [1984] AC 57 | Other-acts evidence admissible if connected to issues at trial. | Underlying common-law principle referenced by Respondent. |
Attorney General v. M'Cabe [1927] 1 IR 129 | Follows Makin on relevance of other-acts evidence. | Referenced generally; no distinct application specified. |
Thompson v. R [1918] AC 221 | Need for nexus between evidence and issue. | Listed among supporting authorities on relevance. |
People (AG) v. Kirwan [1943] IR 279 | Nexus principle reaffirmed. | Referenced; no additional elaboration. |
Caccamo v. R [1976] 1 SCR 786 | Canadian authority on similar relevance tests. | Cited among illustrative cases. |
R v. Clarke [1995] 1 Cr App R 425 | Relevance and admissibility criteria. | Included in Respondent’s comparative analysis. |
People (DPP) v. Wharrie [2013] IECCA 20 | Admissibility of evidence connecting accused to drug importation. | Relied on by Respondent by analogy. |
People (DPP) v. JC [2017] 1 IR 417 | s. 23 allows prosecution appeals on any point of law open to a defendant. | Groundwork for Supreme Court’s jurisdictional finding. |
Shell E & P Ireland v. McGrath [2013] IESC 1 | Definition of “discretion” in judicial decision-making. | Quoted to show that discretionary rulings remain reviewable in law. |
Bujinita v. Moldova (ECtHR 2007) | Legal certainty and finality under Article 6 ECHR. | Appellant invoked to resist reopening an acquittal; Supreme Court distinguished. |
People (DPP) v. JB and SM [2025] IESC 10 | Most recent guidance on “interests of justice” test for retrial orders. | Applied by Supreme Court in present case. |
People (DPP) v. A. McD. [2016] IESC 71 | Emphasised exceptional nature of quashing an acquittal. | Formed part of Supreme Court’s cautionary approach. |
People (DPP) v. DK and MK [2021] IECA 32 | Further authority on s. 23 retrial discretion. | Cited among recent jurisprudence. |
People (DPP) v. BK [2023] IESC 38 | Confirms prosecution bears burden of justifying retrial. | Informs Supreme Court’s allocation of onus. |
People (DPP) v. Coddington (Court of Criminal Appeal 2001, unreported) | Large cash sums as probative in drug-supply cases. | Used by Respondent to analogise admission of paraphernalia evidence. |
Court's Reasoning and Analysis
Issue 1 – Jurisdiction under s. 23. The Court (per Judge O’Malley) held that discretionary evidentiary rulings are capable of containing errors of law. Section 23 was enacted to place prosecution and defence on equal footing regarding points of law; the distinction lies in potential outcomes, not in the nature of the legal question. Therefore the Respondent’s appeal was competent.
Issue 2 – Whether the evidence was wrongly excluded. The Supreme Court agreed with the Court of Appeal that the bedroom items and guilty pleas had significant probative value on the Appellant’s mens rea—specifically his knowledge and intent regarding the methamphetamine package—and that contemporaneity distinguished the material from ordinary “bad character” evidence. The trial judge’s ruling failed to analyse that value and thus constituted an error of law. The material satisfied the statutory definition of “compelling evidence” because it was reliable (formal pleas and seized items) and, combined with other proof, could reasonably ground a conviction.
Issue 3 – Whether a retrial is in the interests of justice. Notwithstanding the legal error, the Court emphasised that quashing an acquittal is “exceptional.” Key factors:
- The prosecution case that survived the exclusion was viable and the jury assessed it on the merits.
- The drug value (~€6,000) was moderate, far below the s. 15A threshold, and no individual victim required vindication.
- Five years had elapsed; the Appellant had already been sentenced on connected offences.
- No systemic legal principle required clarification in a retrial, and the Respondent had not identified a compelling public-interest factor beyond generic seriousness of drug offences.
Applying s. 23(12), the Court found the Respondent failed to demonstrate that a retrial would serve the interests of justice.
Holding and Implications
HELD: The appeal is ALLOWED; the order of the Court of Appeal quashing the acquittal and directing a retrial is set aside, and the original jury acquittal is AFFIRMED.
Implications: The judgment clarifies that while prosecution appeals may challenge discretionary evidentiary rulings, a retrial will not automatically follow. The Respondent must establish a concrete public-interest rationale; routine appeals aimed merely at strengthening an already-tested case will not suffice. No new substantive rule of evidence was created, but the Court emphasised the exceptional nature of overturning acquittals under s. 23.
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