Byrne v Judges of the Circuit Court & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 05 September 2013
• Neutral Citation: [2013] IEHC 396
• Court: High Court
• Date: 05 September 2013

Byrne v Judges of the Circuit Court & DPP

BETWEEN/

NIALL BYRNE

APPLICANT

AND

JUDGES OF THE CIRCUIT COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

DAVID BYRNE

AND

JUDGES OF THE CIRCUIT COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

[2013] IEHC 396

[No. 155 JR/2012]

[No. 186JR/2012]

THE HIGH COURT

CRIMINAL LAW

Prosecution

Successive trials - Prohibition - Test to be applied - Whether ex ante rule prohibiting third successive trial - Whether special and unusual circumstances permitting third successive trial to proceed - Gravity of offences - Delay - Whether excessive delays in prosecution - Bail - Whether bail conditions between trial onerous - Whether considerable stress and anxiety caused to accused and family - Whether juries having failed to return verdict after full trials - Whether fact of long trials and jury deliberations to be taken into account - Whether compelling new evidence to be adduced - Whether new evidence likely to be admissible - Whether evidence obtained via constitutionally impugned search warrant powers likely to be admissible - Whether trial ought to be prohibited - DS v Judges of the Cork Circuit Court [2008] IESC 37, [2008] 2 IR 379; People (DPP) v Quilligan (No 2) [1989] IR 46 and AP v DPP [2011] IESC 2, [2011] 1 IR 729 applied - Carter v State [1999] UKPC 24, [2000] 1 WLR 384; Williams v The State (1988) 258 Ga 305 and R v Henworth [2001] 2 Cr App R 4 approved - People (DPP) v Kavanagh [2012] IECCA 65, (Unrep, CCA, 24/5/2012); United States v Gunther (1976) 546 F 2d 861; United States v Perez (1824) 22 US 579; In re McInerney Homes Ltd [2011] IESC 31, (Unrep, SC, 22/7/2011); Damache v DPP [2012] IESC 11, [2012] 2 IR 266 and R v Momodou [2005] EWCA Crim 177; [2005] 1 WLR 3442 considered - Offences Against the State Act 1939 (No 13), s 29 - One trial prohibited, one trial allowed (2012/155JR & 2012/186JR - Hogan J - 5/9/2012) [2013] IEHC 396

Byrne v Judges of the Circuit Court

The applicants, along with three co-accused, were charged with robbery and false imprisonment. It was alleged that on the 13 ^th March 2005, the gang had abducted the wife and children of a Mr Robertson at gunpoint. Mr Robertson, who worked for Facts: a security company, was then forced to load his cash-in-transit van as normal, and then deliver it to a pre-arranged location. €2,280,000 was taken as a result and Mr Robertson"s wife and children were then abandoned in a forest. The trial against the applicants and the co-accused commenced on the 28th April 2009 and resulted in the conviction of the co-accused on all charges. However, the jury was unable to reach a verdict in respect of the applicants. A second trial was then held in respect of the applicants, but this concluded with a jury disagreement. The Director of Public Prosecutions ('the Director') decided that a third trial would be held. As a consequence, the applicants initiated judicial review proceedings seeking relief restraining further prosecution.

The applicants argued that the delays in the criminal justice process were excessive and that it would be unfair to allow a third trial, especially in light of the fact that the applicants continued to be subject to onerous bail conditions. It was also averred that the applicants and their families had suffered from considerable stress and anxiety as a result of the prosecutions. Additionally, it was said that because the applicants had already endured two lengthy trials that had both resulted in judicial disagreements on the merits of the case, the relief sought should be granted. It was argued by the Director that given the seriousness of the charges against the applicant, it was in the public interest to allow a third trial to proceed. It was also noted that new evidence was available in respect of David Byrne, which the prosecution would seek to adduce if a third trial was heard.

Held by Hogan J that the case of DS v. Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 I.R. 379 made it clear that where both a trial and a re-trial had resulted in judicial disagreements on the merits of the case, there was a presumption that the Director could not pursue a third trial unless there were special and unusual circumstances, although this was not a firm rule of law. It was also noted that although the charges in the present case were of a more grave nature than those in the DS case, the case of Carter v. State [1999] UKPC 24, [2000] 1 WLR 384 determined that a third trial could rarely be justified, even where the charges were of the most serious nature. However, in regards to the applicant"s argument on the delays in prosecution, it was held that the length of time from when the applicants became the subjects of a criminal investigation to the time when a third trial would likely be held, could not be regarded as excessive given the length of the delays and the complexities involved in the case. It was also said that although the Court accepted that the applicants and their families had suffered from significant stress and anxiety, the fact that no medical evidence had been supplied meant the argument could not be regarded as decisive to the judicial review application.

Nevertheless, it was held to be decisive that the applicants had already endured two lengthy trials that had both resulted in judicial disagreements on the merits of the case. It was therefore determined that a third trial would be unfair on the applicants unless there was compelling new evidence available. There was no new evidence in respect of Niall Byrne, therefore an order of prohibition restraining a third trial was granted to him. However, in respect of David Byrne, it was said that the new evidence that the prosecution would seek to adduce on a third trial was potentially highly persuasive. This was said to be the case despite the fact that the new evidence was circumstantial in a case which rested wholly on circumstantial evidence. This factor was held to justify a refusal to grant an order of prohibition.

Order of prohibition restraining a third trial in respect of Niall Byrne granted. Order of prohibition restraining a third trial in respect of David Byrne refused.

DPP v CUNNINGHAM UNREP CCA 11.5.2012 2012/12/3438 2012 IECCA 64

S (D) v JUDGES OF THE CORK CIRCUIT COURT & DPP 2008 4 IR 379 2009 1 ILRM 16 2008/57/11808 2008 IESC 37

DPP, PEOPLE v QUILLIGAN & O'REILLY 1986 IR 495

CARTER v STATE 2000 1 WLR 384 1999 UKPC 24

WILLIAMS v STATE OF GEORGIA 258 GA 369 SE 2d 232 (1988)

UNITED STATES v GUNTHER 546 F 2D 861 (1976)

UNITED STATES v PEREZ 22 US 579 (1824) 9 WHEAT 579

R v HENWORTH 2001 2 CR APP R 47 2001 AER (D) 110 (JAN) 2001 EWCA CRIM 120

MCINERNEY HOMES LTD, IN RE UNREP SUPREME 22.7.2011 2011 IESC 31

DAMACHE v DPP & ORS 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S29

DPP v KAVANAGH UNREP CCA 24.05.2012 2012 IECCA 65

R v MOMODOU 2005 2 AER 571 2005 1 WLR 3442 2005 2 CR APP REP 85 2005 CRIM LR 588 2005 EWCA CRIM 177

1 1. Where a jury fails to agree on a verdict after two long criminal trials in succession, is the accused entitled to demand a halt to any further prosecution in respect of the offence with which he has been charged? This is essentially the question which is posed by these two applications for judicial review which have been heard together. The issue arises in the following way.

2 2. In May, 2006 the applicants were charged, together with three co-accused, with the offence of robbery and false imprisonment arising from the abduction at gunpoint of the wife and children of a Mr. Richardson (who was an employee in a security company) in March, 2005. A criminal gang had broken into the Dublin home of Mr. Richardson on the evening of March 13, 2005 and held him, his wife, Marie, and children at gunpoint. Mr. Richardson was then held in the house overnight while his wife and children were taken to an undisclosed location in the Dublin mountains. In the early hours of March 14, 2005 the raiders permitted Ms. Richardson to speak with her husband by mobile telephone. The telecommunications records relating to this mobile telephone - described in the first two trials as the purple telephone - assume a particular significance in relation to Mr. David Byrne for reasons which are elaborated upon at greater length later in this judgment.

3 3. Later on the morning of March 14 ^th, Mr. Rchardson was required to follow his usual routine, load his van with money and bring it to a pre-arranged location. He followed these instructions and some €2,280,000 was stolen from a cash-in-transit van. As we have just noted, Ms. Richardson and her children had been taken to the Dublin Mountains where they had been held overnight in the back of a vehicle. They were then tied up and abandoned in a mountain forest. They ultimately managed to free themselves and raise the alarm, but not before the robbery had been carried into effect.

4 4. There have been two trials involving the applicants. Mr. Niall Byrne was first arrested at the end of April, 2005. He was then charged with robbery and false imprisonment on 27 ^th April, 2005. Mr. David Byrne was arrested at around the same time. The first trial commenced on 28 ^th April, 2009 and continued until 30 ^th July, 2009.

5 5. Following some four days of jury deliberations, three accused were found guilty by a jury. The jury were, however, unable to reach a verdict in respect of both Mr. Niall Byrne and Mr. David Byrne. (The fact that these two applicants share a common surname is a coincidence and they are not related). The three other persons who were convicted of these offences on this occasion each received lengthy prison sentences, varying from twelve to twenty-five years. These accused successfully appealed their convictions and they are now facing a re-trial:...