[2024]_IESC_57 — [2024]_IESC_57 — Ireland courts

AN CHÚIRT UACHTARACH THE SUPREME COURT

Supreme Court Appeal Numbers: S:AP:IE:2024:000046 (J.B.) S:AP:IE:2024:000061 (S.M.) Court of Appeal Record Number: 2023/110 (J.B.) and 2023/109 (S.M.) Central Criminal Court Record No.: CCDP0101/2021 [2024] IESC 57

O’Donnell C.J. O’Malley J. Woulfe J. Hogan J. Murray J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

– AND –

J.B. AND S.M.

APPELLANTS

JUDGMENT of Mr. Justice Brian Murray delivered this 18th day of December 2024

JUDGMENT REDACTED PENDING RE-TRIAL 1. In these proceedings, the Director of Public Prosecutions (‘the DPP’) successfully

appealed to the Court of Appeal against a directed acquittal. The jurisdiction of the

Court of Appeal to entertain such a ‘with prejudice’ appeal is prescribed by s. 23 of the

Criminal Procedure Act 2010, as amended (‘the 2010 Act’). Section 23 of the 2010 Act

stipulates that such an appeal lies only where there has been an identified error of law

by the trial judge. The question before this Court is whether the Court of Appeal was

correct both in concluding that the decision appealed against was one of law for the

purposes of the 2010 Act, and in finding that the trial judge erred in so directing.

2. The charges were of attempted murder, and possession of a firearm with intent to

endanger life contrary to s. 15 of the Firearms Act 1925, as substituted by s. 42 of the

Criminal Justice Act 2006 and as amended by s. 35 of the Criminal Justice Act 2007

together (in the case of J.B.) with a charge of damaging property contrary to s. 2(1)

Criminal Damage Act 1991, as amended.

…

7. Some weeks after the attack S.M. and J.B. were both arrested for an offence contrary

to s. 15 of the Firearms Act 1925 and were detained at a Garda station pursuant to s. 50

of the Criminal Justice Act 2007. They were interviewed there. Each was accompanied

throughout the interviews by a solicitor. Two provisions of the Criminal Justice Act

1984 (‘the 1984 Act’) which allow the drawing of inferences from the failure of an

accused person to account for certain matters, were then invoked by members of the

Gardaí. These were s. 18 of the 1984 Act (invoked against J.B. in relation to the

firearms residue on the gloves that were in his possession at the time of arrest) and s. 19 of the 1984 Act (invoked as against both S.M. and J.B. in relation to their presence

in Vehicle 2 when it was stopped by the Gardai and against S.M. in relation to his

presence in the vicinity of Vehicle 1 earlier that day). The relevant belief animating the

invocation of each provision was said to be that possession of the gloves and the

presence of S.M. and J.B. at the locations in question might be attributable to their

participation in the offence of possession of a firearm with intent to endanger life at the

location, and at the time of the attack, or some other arrestable offence. Both S.M. and

J.B. declined to account for these matters. The effect of ss. 18 and 19 of the 1984 Act

is that a failure to provide an account when demands are made in accordance with those

provisions, may be relied upon to draw certain inferences both by the trial judge when

considering an application to withdraw a case from a jury, and by the jury when

considering the issue of guilt or innocence.

8. The trial judge withdrew the case from the jury on the basis that it fell within category

2(a) of the test for a directed acquittal articulated in R v. Galbraith [1981] 2 All ER

1060 (‘Galbraith’). This category arises where there is some evidence, but the judge

concludes that when taken at its height, that evidence is such that the jury properly

directed could not properly convict on it. Essentially, she concluded that the case relied

entirely on circumstantial evidence which did not give rise to direct evidence but rather

to inferences. She held that it would not properly be open to a jury to reach the

inferences contended for by the prosecution.

9. The DPP appealed this decision, the judgment of the Court of Appeal being delivered

by Birmingham P.. He said that every application to withdraw a case from the jury is

classically a matter of law and involves a submission that, as a matter of law, there is insufficient evidence to be considered by the jury and that it is a case that should be

withdrawn from the jury. It was on that basis that Birmingham P. held that the trial

judge erred in law in withdrawing the case from the jury. He found that the trial judge

focused on the limitations of each individual strand of evidence rather than considering

the cumulative effect of the various strands of evidence. There was, he said, ‘a focus on

the frailties and limitations of individual strands of evidence’. The evidence, he found,

was such that it could and should have been assessed by a jury. This Court granted the

appellants leave to appeal the decision of the Court of Appeal ([2024] IESCDET 84).

*

10. Section 23(1) of the 2010 Act expressly limits the right of the prosecutor to an appeal

against an acquittal that is ‘on a question of law’. Section 23(3)(b) frames the power to

appeal against a direction as follows:

(b) a direction was given by a court during the course of a trial referred to in

subsection (1), directing the jury in the trial to find the person not guilty where—

(i) the direction was wrong in law, and

(ii) the evidence adduced in the proceedings was evidence upon

which a jury might reasonably be satisfied beyond a reasonable

doubt of the person's guilt in respect of the offence concerned.’

11. The appeals thus present a net issue: where a trial judge determines that a case should

be withdrawn from the jury under the principles articulated in Galbraith and applied in

this jurisdiction, is the question whether they erred in so concluding one of law, fact, or

something else? The appellants’ contention is that issues relating to inferences of fact drawn from evidence are questions of fact. They refer to the judgment of Hardiman J.

in Fitzgerald v. Director of Public Prosecutions [2003] 3 IR 247 at 269. There, he stated

that ‘if the question raised related not to the existence of evidence, but to its credibility

or to inferences of fact which could reliably be drawn from it, that would be a question

of fact’. The appellants argue that the distinction between a decision where the evidence

suffices to convict as compared to a lack of evidence giving rise to a direction to acquit

is that to convict evidence needs to fulfil certain legal proofs. However, they contend

that a determination as to a lack of evidence or as to the quality of evidence is a factual

finding. They say that the decision of the Court of Appeal blurs the distinction between

law and fact, resulting in legal uncertainty and potentially enlarging the scope of the

appeal allowed under s. 23 of the 2010 Act. It was also observed in the course of

submissions that s. 23(3)(b) posits two conditions – that there be an error of law and

that there be evidence on which a jury might reasonably convict – suggesting that these

are distinct and, thus, that the latter is not properly characterised for the purposes of the

section as an error of law.

12. These contentions are misconceived. The distinction between errors of fact and errors

of law is, as a matter of general legal principle, clear and firmly established. Where the

question is whether a fact-finding body can lawfully reach a conclusion based on the

evidence before it, the issue is by definition a legal one, determined by an assessment

of whether the tendered evidence, if proven, is capable of rationally sustaining that

conclusion. That is to be contrasted with the distinct process of deciding what the facts,

based upon the evidence, actually are. Both exercises will involve a review of the facts

but, for different purposes. To state the obvious, the fact finder is assessing the evidence

to find the facts, while the court when assessing whether the evidence is lawfully capable of sustaining a particular conclusion, is embarked upon a different, and wholly

legal inquiry. The point was made succinctly and clearly by Dunne J. in The People

(DPP) v. Pires, Corrigan and Gannon [2018] IESC 51, [2019] 1 ILRM 248,

‘[r]eviewing the facts is not the same as coming to a … finding of fact on the evidence

before the court’.

13. It follows that in the specific context of a criminal trial, a determination of whether

there is sufficient evidence to sustain a conviction depends on the resolution of a

question of law, not of fact. Properly understood, it depends on matching the evidence

adduced against the legal definition of the offence, not in weighing the evidence to find

the facts, and not in deciding which witnesses are to be believed or not believed.

Instead, the inquiry is directed to whether the evidence that has been produced is legally

capable of sustaining a conviction for the offence having regard to the elements of the

offence. The distinction between the two exercises is plain: one involves an assessment

of what is required in law to establish the offence, while the other demands an

assessment of what the facts, on the basis of the evidence, actually are.

14. It is to be expected that these basic propositions have been constantly restated in the

cases. The position was put shortly in The State (Turley) v. O’Floinn [1968] IR 245,

251 (‘Turley’) by Ó Dálaigh C.J.: ‘[t]he question [of] whether there is sufficient

evidence in law to support a conviction is not a question of fact but a question of law’.

Counsel for S.M. stresses the reference here to ‘a conviction’, suggesting that while an

ex post facto analysis of whether there is evidence to support a conviction that has been

imposed is an error of law, whereas in some sense a prospective determination of

whether there is sufficient evidence to go to a jury is not. This distinction is illusory, the difference being one of timing alone. The essential question is the same – whether

as a matter of law there is sufficient evidence to convict.

15. It is important to observe – as Charleton J. recently stressed in the course of his

judgment in The People (DPP) v. McHugh [2024] IECA 176 at para. 12 – that a judge

may be called upon in deciding whether a case may properly go to a jury, to determine

whether the evidence is so tenuous that the jury could not properly convict. Noting that

this is a high bar, and indeed that it often requires an exercise of judgment by the judge,

the cases are clear that this does not convert the exercise from that of legal assessment,

to one of fact finding. The question of whether the evidence adduced is so tenuous that

it would be perverse to convict on it, is itself one of law. This was made clear by Finlay

P. in The People (DPP) v. O’Shea (No 2) [1983] ILRM 592, 594, when he explained as

follows:

‘One of the functions of a trial judge in a criminal trial is to reach a decision at

the conclusion of the evidence tendered on behalf of the prosecution as to

whether there is evidence which if accepted by a jury could as a matter of law

lead to a conviction. This may frequently occur in practice in cases where there

is a gap in the evidence tendered on behalf of the prosecution and where some

vital link in the chain of proof is missing. It also arises in my view, however,

and not infrequently, in cases where an apparent link in the chain of proof is so

tenuous that it would clearly be perverse for a jury properly directed as to the

onus of proof upon the prosecution to act upon it.’

(Emphasis added) 16. In Fitzgerald v. Director of Public Prosecutions at p. 269, Hardiman J. cited the

statement from the judgment of O’Dalaigh CJ in Turley to which I have earlier referred,

and then continued as follows:

‘This is so because the ingredients of an offence are always known as

ascertainable and the question of whether there is evidence to support the

existence of each of them is a wholly legal question. But if the question raised

related not to the existence of evidence, but to its credibility or to inferences of

fact which could reliably be drawn from it, that would be a question of fact.’

17. I have noted earlier that S.M. and J.B. stress the last sentence of this quotation,

suggesting that in this case, the judge when deciding whether to grant the direction

embarked upon an exercise that related to the inferences of fact that could reliably be

drawn from the evidence and thus, they said, the decision reached was, on this

formulation, one of fact. The submission focuses entirely on the second sentence of

Hardiman J.’s statement, to the exclusion of the first. In deciding whether there is

evidence to support the elements of the offence – the question of law – the court may

well have to assess whether the evidence (including the inferences that might

reasonably be drawn from that evidence) is so tenuous that it could not sustain a

conviction. But it is not finding any facts. It is resolving the legal issue of whether the

evidence is capable of sustaining a conviction.

18. Finally, insofar as reliance is placed upon the fact that s. 23(3)(b) imposes two

requirements – that the direction be wrong in law and that there be evidence upon which

a jury might reasonably convict – and while it is the case that in some situations these will, if the DPP is correct, mean the same thing, this will not be so in all cases. A

direction might be given, for example, pursuant to the so-called PO’C jurisdiction (The

People (DPP) v. PO’C [2006] 3 IR 238), yet there may be sufficient evidence on which

a jury might reasonably convict (for an example of that very circumstance see The

People (DPP) v. DK and MK [2021] IECA 32). In that situation, it makes sense that

the Oireachtas would wish to ensure that an appeal should not be allowed under s. 23

in a case in which the direction under the PO’C jurisdiction was wrong, but in which

there was insufficient evidence to go to the jury. So, there is no necessary incongruity

in the legislature specifying these as separate requirements, even though a direction on

the basis that there is insufficient evidence to go to the jury might itself constitute an

error of law and although it might seem anomalous that in such a case the Oireachtas

may be requiring that the court ask itself the same question, twice.

*

19. I have noted earlier that the Court of Appeal held that the trial judge had erred in finding

that the evidence adduced by the prosecution was such that no reasonable jury could

have convicted the appellants. It was of the view that the accumulated effect of the

evidence was to ground a circumstantial case. I agree with the conclusion reached by

the Court of Appeal, but for a particular reason.

20. The effect of the provisions of ss. 18 and 19 of the 1984 Act (as inserted by s. 29 of the

Criminal Justice Act 2007) is that where an account has been requested from an accused

in accordance with those provisions and that account has not been given, the court (in

deciding whether to withdraw a case from a jury) and the jury (when determining whether an accused is guilty of an offence) ‘may draw such inferences from the failure

or refusal as appear proper’. Moreover, the failure or refusal may, on the basis of such

inferences, be treated as capable of amounting to corroboration of any evidence in

relation to which the failure or refusal is material.

21. Section 18 addresses the making of a request to account for any ‘object, substance or

mark’. Section 18(1) provides as follows:

(1) Where in any proceedings against a person for an arrestable offence

evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being

questioned by a member of the Garda Síochána in relation to the

offence, or

(b) when being charged with the offence or informed by a member of the

Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for any object, substance or mark, or

any mark on any such object, that was—

(i) on his or her person,

(ii) in or on his or her clothing or footwear,

(iii) otherwise in his or her possession, or

(iv) in any place in which he or she was during any specified period, and which the member reasonably believes may be attributable to the

participation of the accused in the commission of the offence and the member

informed the accused that he or she so believes, and the accused failed or

refused to give an account, being an account which in the circumstances at the

time clearly called for an explanation from him or her when so questioned,

charged or informed, as the case may be, then, the court, in determining whether

a charge should be dismissed under Part IA of the Criminal Procedure Act

1967 or whether there is a case to answer and the court (or, subject to the

judge’s directions, the jury) in determining whether the accused is guilty of the

offence charged (or of any other offence of which he or she could lawfully be

convicted on that charge) may draw such inferences from the failure or refusal

as appear proper; and the failure or refusal may, on the basis of such

inferences, be treated as, or as capable of amounting to, corroboration of any

evidence in relation to which the failure or refusal is material.

22. Section 19 addresses the making of a request for an account of a person’s presence at a

place. Section 19(1) provides inter alia:

(1) Where in any proceedings against a person for an arrestable offence

evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being

questioned by a member of the Garda Síochána in relation to the

offence, or (b) when being charged with the offence or informed by a member of the

Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for his or her presence at a particular

place at or about the time the offence is alleged to have been committed, and

the member reasonably believes that the presence of the accused at that place

and at that time may be attributable to his or her participation in the

commission of the offence and the member informed the accused that he or she

so believes, and the accused failed or refused to give an account, being an

account which in the circumstances at the time clearly called for an explanation

from him or her when so questioned, charged or informed, as the case may be,

then, the court, in determining whether a charge should be dismissed under Part

IA of the Criminal Procedure Act 1967 or whether there is a case to answer and

the court (or, subject to the judge’s directions, the jury) in determining whether

the accused is guilty of the offence charged (or of any other offence of which he

or she could lawfully be convicted on that charge) may draw such inferences

from the failure or refusal as appear proper; and the failure or refusal may, on

the basis of such inferences, be treated as, or as capable of amounting to,

corroboration of any evidence in relation to which the failure or refusal is

material.

23. In summary, in respect of both sections, a number of things are clear. First, that a failure

or refusal to answer questions is not in itself evidence nor is it in itself corroboration of

evidence. Second, however, inferences may be drawn from that failure or refusal.

Third, those inferences may be treated as, or be treated as capable of, amounting to

corroboration of evidence. Fourth, to be treated as, or treated as capable of amounting to, corroboration, the failure or refusal must be ‘material’ to that evidence. Fifth, each

provision (ss. 18(2) and 19(2)) stipulates that a person ‘shall not be convicted of an

offence solely or mainly on an inference’ drawn from a failure or refusal to account

under these provisions.

24. The third and fourth of these points fall to be understood in a context in which,

according to well established authority, ‘corroboration’ refers to ‘independent evidence

of material circumstances tending to implicate the accused in the commission of the

crime with which he is charged’ (The People (Attorney General) v. Williams [1940] IR

195, 200 per Sullivan C. J. citing O’Byrne J. in Levison’s Case [1932] IR 158, 165).

All fall to be considered in a context in which it is not the failure to answer questions

which itself amounts to corroboration or indeed is itself evidence. Rather, the failure to

answer questions material to the offence permits the court (but does not require it) to

draw inferences from such failure as appear proper (The People (DPP) v. Donnelly

[2012] IECCA 78).

25. There are a range of additional conditions imposed on the operation of these provisions:

the accused must be told in ordinary language what the effect of the failure or refusal

to account will be and must be afforded a reasonable opportunity to consult a solicitor

before the refusal or failure occurs (ss. 18(3) and 19(3)). These conditions must be

strictly construed, and the statutory conditions provided must be enforced (The People

(DPP) v. KM [2018] IESC 21). In this case, no questions were asked by counsel for

S.M. and J.B. of the Gardaí who gave evidence of making the requests, and no issue

was raised at the application for a direction around the application of the provisions. *

26. In resolving this appeal I propose – without deciding the issue – to put to one side the

s. 19 demand made of S.M. in relation to his presence at a location several hours before

the attack: s. 19 is concerned only with a situation in which the demand is made in

respect of presence ‘at or about the time the offence is alleged to have been committed’

and it is at least arguable that this does not extend to the person’s presence at this

remove from the point in time at which the offence in question was committed. While

noting that there are cases in which a very broad remit has been afforded to this aspect

of the requirement (see The People (DPP) v. Maguire [2021] IECA 223), the issue was

not argued in any detail in this case and nothing I say here should be taken as prejudging

the question one way or the other. However, the request made under this provision of

both accused as to their presence in Vehicle 2 is in a different category, as this was

made at a point approximately twenty minutes after the shooting and was made in the

context of a belief that both accused were fleeing from the scene of that event.

27. That being so, the trial judge in addressing the application for a direction was faced not

merely with the evidence which led the Court of Appeal to conclude that there was

sufficient circumstantial evidence to allow the case to go to the jury, but with the

prospect of three distinct inferences being drawn by the jury pursuant to ss 18 and 19

of the 1984 Act: from J.B.’s refusal to account for the presence of firearm residue on

the gloves found in his possession, and from the refusal of both S.M. and J.B. to account

for their presence in Vehicle 2. 28. In the course of her submissions in response to the appellants for a direction, counsel

for the DPP addressed the trial judge in respect of the inferences. She observed that at

the time the appellants were questioned, they had the assistance of a solicitor but that

when the inferences were invoked, they chose not to account – in the case of S.M. for

his presence in Vehicle 2 or his presence in the area in which Vehicle 1 had been parked

earlier that afternoon and in the case of J.B. as to his presence in Vehicle 2 and for the

firearm residue on the gloves. Counsel said that while she did not suggest that there

could be a conviction on inferences alone, ‘that failure to account can be used as

support for the other evidence in the case’ and could ‘go into the mix in … the jury’s

consideration as to whether the consider there is support for the case led’. Counsel for

S.M. submitted in response that ‘there has to be sufficient evidence within the case to

where they want to go before they can start relying on inferences’ and that they could

not ‘just start using them to bolster evidence that doesn’t get to the required mark’.

S.M. made similar arguments before this Court, contending that inferences must be

linked to concrete evidence and in this case the DPP was using the inferences ‘to amplify

weak circumstantial evidence’.

29. The trial judge did not address the relevance of these inferences in her ruling. While it

is to be noted that the prosecution did not identify what, precisely, the inferences that

might have been drawn from the refusal of the appellants to respond to the requests

made of them under ss. 18 and 19 actually were, the failure to give any weight to these

provisions in both cases was an error of law. The Court of Appeal did take account of

the inferences, Birmingham P. saying (at para. 22): ‘A further strand was the failure to answer questions when the inference

provisions were invoked. Neither respondent could be convicted by reason only

of the failure to answer questions, but once the evidence was admitted, it had

the potential to support the other evidence in the case.’

30. This was correct. Inferences, while not proof, can be treated as or as capable of

amounting to corroborative evidence. While a person may not be convicted solely or

mainly on the basis of inferences alone, and while the Court has held that the inferences

may only be used as corroboration of other evidence in relation to which the failure or

refusal is material, the section presupposes that the court on a direction application will

determine what inferences may be properly drawn (see Rock v. Ireland [1997] 3 IR 484

at 498 and 501 per Hamilton C.J.). The court might, for example, decide that it would

refuse to allow an inference in circumstances where its prejudicial effect would wholly

outweigh its probative value (ibid. at p. 498).

31. It follows that it is not the case that the inferences may only be considered by a judge

at an application for a direction if the rest of the evidence would, in and of itself, meet

the threshold required to surmount that application; the reference in the sections to the

court’s consideration of whether there is a case to answer only makes sense if taking

account of the inferences adds something to the decision on such an application. In any

event, when considering an application for a direction the court must, as I have said,

address its attention to whether there is evidence on which a properly instructed jury

may reasonably convict. This requires that all of the evidence that might be considered

by the jury be factored into the calculation of whether the direction ought to be given.

By failing to address the inferences that might have been drawn from the refusal of the appellants to provide any account of (in the case of J.B.) the residue on the glove in his

possession or (in the case of both appellants) their presence in Vehicle 2 shortly after

the attack, this did not occur. It should be restated that the indisputable consequence of

ss. 18 and 19 is that these provisions do more than merely affect the weight of other

evidence: inferences, where the Court has decided that it is proper that they be drawn,

can be treated as or as capable of amounting to corroborative evidence and it is critical

to the function of and reason for these provisions that they ‘could lead to an accused

being convicted of a serious offence in circumstances where he or she might otherwise

have been acquitted’ (Rock v. Ireland at p. 501, per Hamilton C.J.).

*

32. Where the Court of Appeal or this Court hears an appeal under s. 23 of the 2010 Act,

a retrial of the accused is in prospect: this is the very purpose of such an appeal. There

will, accordingly, be cases in which it is appropriate that the appellate court exercise

caution in its analysis of the underlying facts and, specifically, that it does not present

its conclusions in terms that might be understood as an interference with the conduct of

such a retrial. That circumspection is of particular importance in the context of an

appeal against a direction which, necessarily, is dependent on the evidence that has been

adduced in the course of the original trial. It is in part for these reasons that my account

of the underlying facts in this case is both generalised and abbreviated. Moreover, here

I have concluded that the trial judge erred in granting a direction without taking proper

account of the inference provisions. At any retrial, issues may arise around the

application of ss. 18 and 19 of the 1984 Act (the conditions to the invocation of which

must be strictly complied with) which were not to the fore in the original trial. 33. As I have previously noted, s. 23(3) of the 2010 Act requires that where an appeal is

brought against a direction, the court be satisfied not merely that the trial judge erred in

law in granting the direction, but also that ‘the evidence adduced in the proceedings

was evidence upon which a jury might reasonably be satisfied beyond a reasonable

doubt of the person's guilt in respect of the offence concerned’. I have no doubt but

that when the cumulative effect of the circumstantial evidence adduced in this case is

combined with the statutory inferences (as the Court of Appeal found) a jury ‘might

reasonably’ be satisfied of guilt. In particular, the very fact that J.B. was found a short

while after the attack in possession of gloves containing firearm residue that was

(according to the evidence adduced by the prosecution) consistent with the weapon used

in the attack, that he declined to account for this, and that neither he nor S.M. were

prepared to account for why they were both in the vehicle in which they were stopped

at that place and at that time, might reasonably lead the jury to draw inferences

consistent with guilt. The combination of those inferences, and the other evidence might

reasonably lead the jury to convict of some or all of the offences charged. That being

so, I agree with the conclusion of the Court of Appeal that the trial judge erred in law

in withdrawing the case from the jury. The Court will address separately the question

of whether there should be a retrial.