The Supreme Court has ordered the retrial of a man acquitted on burglary and arson charges after it was found the trial judge had wrongly excluded CCTV and other evidence against him.
The four-judge court unanimously granted an appeal by the DPP against Dublin Circuit Criminal Court’s exclusion of CCTV footage and a memo of an interview with the man.
It upheld the DPP’s arguments the trial judge erroneously excluded “compelling evidence” within the meaning of section 23 of the Criminal Procedure Act 2010.
Because there was no other evidence of value against the man, the trial judge had directed his acquittal on counts of burglary, arson and endangerment arising from an incident on August 19th, 2011, where a car was set on fire in the car park of an apartment complex in Dublin’s north inner city.
Gardaí went to the scene after a member of the public phoned them that night and a garda saw the man on the inside of a gate to the car park underneath the apartment building. The officer noticed a car on fire and the man was arrested soon afterwards.
He was interviewed three times and during the third interview accepted he was at the scene but denied setting fire to the car.
Gardaí later obtained CCTV footage which appeared to show a man, whom they believed was the accused, setting fire to the car. On foot of that evidence and forensic information, he was re-arrested, again interviewed and later charged.
The prosecution argued that what was said by him during an interview on November 26th, 2011, amounted to an express admission he was present when the car was set on fire and he was responsible for that fire.
Hearsay
Giving the court’s judgment, Mr Justice William McKechnie said the trial judge, Judge Sarah Berkeley, erred in finding the prosecution must call evidence whether there was human intervention in creation of the CCTV footage before she could exclude the possibility of it being hearsay, as opposed to real, evidence.
The actual footage recorded by a CCTV system was not hearsay and could not be objected to on that ground, he ruled.
That finding should not be read as suggesting the admissibility of CCTV footage could never be challenged and all other sustainable grounds of objection, including regarding quality of footage, still applied, he stressed.
CCTV was frequently used in criminal trials, was often described as “best evidence” and it was “difficult to argue with that perception”, he added.
Material generated by other machines or devices, such as computers, may either be hearsay or real evidence depending whether such material was the direct product of human intervention, meaning such material had passed through a human mind and was simply reflective of human input, he said.
The judge also found the trial judge wrongly invoked section 19 of the Criminal Justice Act 1984 to exclude the November 26th, 2011, interview memo.
Section 19 allows, in certain circumstances, inferences to be drawn from a person’s failure to “account” for their presence at a particular place or time.
The right to silence was not an absolute right and the answers by the accused in the November 26th interview did not preclude the gardaí invoking section 19 just before that interview, the judge said.
A failure or refusal to account must be evaluated in the context of then existing circumstances and gardaí were “well justified” in invoking section 19 because the accused’s answers could only be regarded as an “outright refusal” to engage with the new evidence – the CCTV footage – put to him.
Because of that, it could not be argued his alleged confession during that interview was involuntarily obtained.
There was no reason why a retrial should not be ordered, the court held.
