A man’s conviction has been dropped for building safety failures after a fire broke out at a Wexford apartment block he owned seven years ago, despite the Court of Appeals dismissing his grounds of appeal.
Judge Patrick McCarthy returned on Wednesday and said the three-judge court would take the unusual step of dismissing the grounds of the appeal, but would quash the conviction over concerns about elements of the investigating judge’s indictment against the jury.
Leslie Peacock (75) was convicted in January 2015 by the Wexford Circuit Criminal Court for “failing to guarantee safety in the event of a fire” that broke out on January 20, 2012 at Kennedy Plaza Apartments in North Quay, New Ross, Co Wexford. He had pleaded innocent and will now face a new trial after a successful appeal.
The five-storey building contained 24 apartments and was occupied by 32 residents at the time of the fire, with the fire alarm not sounding.
Mr Peacock, of Rockland House, Cherry’s Road, New Ross, was found to be in violation of Section 18 of the Fire Services Act, which states that it is the duty of “every person who has control over buildings” to “ensure to the extent reasonably practicable, the safety of persons on the premises in the event of an outbreak of fire, whether or not such outbreak occurs”.
On June 10, 2015, Mr Peacock was ordered to pay a €50,000 fine in monthly installments of €1,000 over a 50-month period. If he failed to pay, he would serve 12 months in prison.
The appellant had told gardaí that all the electrics had been checked when he bought the property in 2010 and that a new fire alarm system had been installed that was in accordance with the regulations.
A concierge on site and Mr Peacock were instructed by the installer on how to operate the fire alarm system. However, the janitor told gardaí that the system would be activated every weekend, while a resident told gardaí that the alarm would go off on the “minor incidents”.
In the early hours of the day of the fire—around 12:40 p.m.—a resident of the building called the janitor and told him the alarm was going off. The janitor was unable to visit the building and told him how to disable the alarm by removing the fuse and batteries, which the resident did with a screwdriver.
The janitor was supposed to reset the alarm later that day, but when he arrived around 4:20 p.m., the building was on fire and the alarm did not go off.
Mr Peacock’s lawyers claimed that the trial judge, Judge Alice Doyle, made a mistake in handing down a not guilty verdict following a request from the defence.
His legal team also claimed that the judge erred in allowing the prosecution to change the charges after the prosecution case closed.
The request for acquittal on warrant was made on a number of grounds, the main one being that there was insufficient evidence that Mr Peacock was either the person who “had control” of the property or that he had failed to ensure security to the extent “reasonably executable” “.
Appellant’s counsel claimed that Mr Peacock lost control of the property when the fire alarm was turned off at the urging of the caretaker in a “playful manner of his own”.
On Wednesday, the Court of Appeals rejected the claim that Mr Peacock had no control.
Judge Patrick McCarthy read out the court’s verdict which held that “there was sufficient evidence of scrutiny”. The judge said Mr Peacock owned the building, received rent, had a caretaker and was also responsible for installing the alarm.
The second plea concerned changing the wording of the indictment from “a person in control of the building” to “owning and controlling” the block.
It had been argued that this change could have misled the jury into thinking that proof of ownership was sufficient to distinguish the offense. The argument was rejected by the Court of Appeal because the first instance judge “explained in clear terms the nature of the crime and made it clear that control was central”.
“It is unusual, however, that while the court dismisses the two grounds of appeal raised by the appellant, the court proposes that the conviction be quashed and a new trial be ordered,” Mr McCarthy said.
“This is because of the court’s concerns about how ingredients of the crime other than control were handled in the investigating judge’s indictment, particularly her indication to the jury that knowledge on the part of the plaintiff was completely irrelevant,” the prosecutor said. Mr Justice McCarthy.
Mr McCarthy said numerous references during legal argument to concepts such as “strict liability, mens rea, knowledge and the question of reasonable feasibility” caused confusion “on all sides about these matters”.
He said the janitor has never provided evidence in the case and that the only direct evidence as to who turned off the alarm has been passed to the court by a garda. This, the judge said, amounted to hearsay evidence presented to the jury, in a case where the appellant claims to be unaware of the alarm being turned off.
“Under the circumstances, we are concerned that the plaintiff may have been convicted in circumstances where the jury did not properly understand the ingredients of the crime, or how they could be proven by the prosecution. We will therefore quash the conviction for that reason and refer the case back for a new trial,” said Mr McCarthy, who adjourned the case to October 4.