A man has had his conviction overturned after a fire broke out at a Wexford apartment block seven years ago due to safety failings in the building, despite the Court of Appeal rejecting his appeal.
Returning the verdict on Wednesday, Mr Justice Patrick McCarthy said the three-judge court would take the unusual step of rejecting the grounds of appeal but upholding the sentence because of concerns about the trial judge’s charge to the jury. Will cancel.
Lesley Peacock (75) was convicted at Wexford Circuit Criminal Court in January 2015 of “failing to ensure safety in the event of a fire” at Kennedy Plaza Apartments in North Quay, New Ross, Co Wexford on 20 January 2012. I was engaged. He had pleaded not guilty and will now face a retrial after a successful appeal.
The five-story building had 24 apartments and was occupied by 32 residents at the time of the fire, during which the fire alarm did not go off.
Mr Peacock, of Rockland House, Cherry Road, New Ross, was found to have breached section 18 of the Fire Services Act, which states it is “the duty of every person having control of premises” to ensure Make As reasonably practicable, the safety of persons on the premises in the event of fire whether or not such outbreak occurs.”
On June 10, 2015, Mr. Peacock was sentenced to pay a fine of €50,000 in monthly installments of €1,000 over 50 months. If he fails to pay the amount, he will have to serve 12 months in jail.
The appellant had told gardaí that when he bought the property in 2010 all the electrics had been checked and a new fire alarm system had been installed which complied with the regulations.
A property caretaker and Mr Peacock were shown how to operate the fire alarm system by the installer. However, the caretaker told gardaí that the system would be activated every weekend while a resident told gardaí that the alarm would go off on “the most minor incidents”.
In the early hours of the day of the fire – around 12.40pm – a resident of the building called the caretaker and told him that the alarm was going off. The caretaker could not attend the building and told him how to turn off the alarm by removing the fuses and batteries, which the resident did using a screwdriver.
The caretaker was supposed to reset the alarm later that day but when he arrived at around 4.20pm, the building was on fire and the alarm was not sounding.
Mr. Peacock’s lawyers contended that the trial judge, Judge Alice Doyle, erred by failing to direct a not guilty verdict following a defense plea.
His legal team also claimed the judge erred in allowing prosecutors to amend the indictment after the trial.
The plea for acquittal was made on a number of grounds, the most important of which was that there was insufficient evidence that Mr Peacock was either a person in “control” of the premises or that he was “reasonably able” to do so. Failed to ensure safety. “
Counsel for the appellant claimed that Mr Peacock had “lost control” of the premises when the fire alarm was set off “at will” at the behest of the caretaker.
On Wednesday the Court of Appeal rejected the claim that Mr Peacock was not in control.
Mr Justice Patrick McCarthy read the court’s judgment which found there was “substantial evidence of control”. The judge said Mr Peacock owned the building, that he collected the rent, had a caretaker and was also responsible for installing the alarm.
The second ground of appeal relates to changing the wording of the indictment from “person in control” of the building to “owning and having control” of the block.
It was argued that this change could have misled the jury into thinking that evidence of possession was sufficient to prove guilt. This argument was rejected by the Court of Appeal because the trial judge “defined the nature of the offense in plain terms and made it clear that the key issue was one of control”.
Mr Justice McCarthy said, “Unusually, however, although the Court rejects the two grounds of appeal relied upon by the appellant, the Court recommends quashing the conviction and ordering a new trial. “
Mr Justice McCarthy said, “This is because of the court’s concerns about how the trial judge’s charge dealt with the elements of the offense other than control, particularly his instruction to the jury that the appellant had full knowledge of was irrelevant.” .
Mr Justice McCarthy said numerous references during the legal argument to concepts such as “strict liability, mens rea, the issue of knowledge and reasonable practice” had “created confusion on all sides about these matters.”
He said the watchman never gave evidence in the case and the only direct evidence that disabled the alarm was given in court by a garda. This, the judge said, is akin to hearsay evidence being put before a jury in a case where the appellant claims not to have known the alarm had gone off.
“Under the circumstances, we are concerned that the appellant may have been convicted in circumstances where the jury did not properly understand the elements of the crime, or how it could be proved by the prosecution. We therefore will set aside and remand the matter for retrial,” said Mr Justice McCarthy, who adjourned the matter to October 4.