Byrne v Judges of the District Circuit Court
| Jurisdiction | Ireland |
| Judge | Mr Justice Charleton,Mr. Justice Hardiman |
| Judgment Date | 17 February 2015 |
| Neutral Citation | [2015] IESC 105 |
| Docket Number | Record number: 2012/155JR Appeal number: 405/2013 |
| Court | Supreme Court |
| Year | 2015 |
[2015] IESC 105
Denham CJ
Hardiman J
O'Donnell J
Dunne J
Charleton J
Record number: 2012/155JR Appeal number: 405/2013
Record number: 2012/186 Appeal number: 538/2013
An Chúirt Uachtarach
The Supreme Court
Crime & sentencing – Procedure – Jury – Failure to reach a verdict – Retrial
Facts: The applicants were suspected of involvement in a kidnapping and related robbery. Two previous trials had collapsed, when deadlocked juries could not reach a verdict. The matter was now listed for trial a third time. The High Court had found that there was a working presumption prohibiting a third trial save in certain circumstances, and that one applicant could face a new trial, whereas the other would not. The DPP and the applicant facing retrial now appealed to the Supreme Court.
Held by Mr Justice Charleton, the other Justices concurring*, that the DPP’s appeal would be allowed and the applicant’s dismissed. Having considered domestic and other common law jurisprudence, the Court was persuaded that in certain cases involving grave offences and complex factual circumstances, a third trial was permissible. The Court also commented on the duty of counsel to assist the Judge(s) in maintaining focus in complex trials.
*The late Mr Justice Hardiman handed down a dissenting judgment, but passed away before that judgment could be approved.
Judgment of Mr Justice Charleton delivered on the 17th day of February 2015
At issue in this appeal is the extent to which an accused person may be tried again on a criminal charge when on prior occasions a jury has failed to reach a verdict. Niall Byrne the applicant/appellant and David Byrne the applicant/respondent are listed for trial together before the Dublin Circuit Criminal Court in the first term of 2015 on offences of kidnapping the wife and two children of an employee of Securicor and of robbing that firm of a large sum of money. Were the trial to take place it would be, in respect of each of these appeals, the third occasion when they would be tried. After two prior lengthy trials, juries were discharged deadlocked after being unable to agree unanimously, or by a majority of at least 10, that the accused were either guilty or not guilty.
The essential issue at each trial has been whether the accused were proved to have been involved in that offence. This was asserted on the basis of circumstantial evidence as there was no identification by the victims of their assailants. Violence and degradation characterise the crimes that led to these prosecutions. There is no question that the victims of them are exaggerating or that the offences did not take place. The question, rather, at trial has been whether the prosecution have proof beyond reasonable doubt that Niall Byrne and David Byrne, two unrelated men of the same family name, were part of the criminal gang that committed them. The main victim worked for Securicor in the transport of money for commercial purposes. As is well known, vans carrying money are heavily armoured and on at least some of them a sign can be seen stating that valuables within are kept locked in a safe to which employees have no access. Rather than outright robbery, therefore, intimidation has become an alternative method of theft from security companies and banks. That is what happened here. On the evening of Sunday the 13th March 2005, a man working for the security firm came home with his young son from ordinary family business and discovered on entering his home that his wife and other boy were being held at gunpoint by this gang. As would be expected, they were disguised. He was kept in his home and the two small boys and their mother were taken away at gunpoint. Overnight, and terrified as to their safety, he was told to follow particular orders with obvious menace as to the consequences of disobedience. Arriving for work on that Monday, therefore, he followed his routine of driving to work and clocking in as if in discharge of the normal duties of his life and employment. He followed instructions to drive a van of which he had charge to a pre-arranged location. His fellow employees were made part of the duress under which he operated through the gang photographing his imprisoned family under gun threat and which he, on orders, showed to them in earnest of his predicament. On the van reaching its destination, it was stripped of its contents, amounting to some €2.23 million; a sum that has never been recovered. The van driver had insisted prior to going in to work in speaking to his family, seeking an earnest of their safety. The phone on which that call was made was coloured purple and the driver was able to ascertain their safety before setting out as the puppet of the gang.
Meanwhile, the degradation of the dignity of these two children and their mother continued. They were held in the rear of a small van overnight in a location that was probably somewhere in the Dublin mountains. On the following day, the criminals took the family and tied them up deep inside a forest. They were left to fend for themselves without food, warmth or sanitation and terrified as to the safety of the other imprisoned member of the family. Eventually they untied themselves and sought out help when they found a public road. By this stage, the robbery had been completed. It would be totally unreasonable not to infer that considerable fortitude will be needed by that family to leave these events in the past. Clearly, an offence of this kind must be ranked with the worst kind of criminal conduct.
Thus far there have been two trials of the Niall Byrne and David Byrne. The first trial of Niall Byrne and David Byrne was together with three other men before the Dublin Circuit Criminal Court. It commenced on the 20th of April 2009, having initially been listed for the 12th of January of that year. It is a measure of its complexity that it lasted 65 days. Of the 5 accused in that trial, three were convicted but the jury in respect of Niall Byrne and David Byrne failed to agree a verdict. After that first trial, apparently it was thought that some time ought to be allowed to pass before a retrial should take place. It is difficult to know how fair and balanced reporting of court proceedings should require this. It was not until the 1st of February that a retrial was scheduled. On grounds of prejudicial publicity, Niall Byrne then sought a judicial review and was granted leave to initiate proceedings on 14 December 2009. In those proceedings a declaration was sought that no retrial ought to take place before October 2010 at the earliest. In the event, without that judicial review coming to a conclusion, a retrial date in respect of Niall Byrne and David Byrne was fixed for the 24th of October 2011. Additional evidence was apparently served by the prosecution in relation to David Byrne somewhat too late to be fairly considered in that trial, according to the ruling of the second trial judge. At this trial, the two men were tried alone and the case, nonetheless, lasted 25 days at trial. When the jury did not agree, the Director of Public Prosecutions indicated a proposed third trial date. This judicial review commenced by leave granted in the High Court on the 5th day of March 2012.
Other events were also taking place. By judgment of this Court in Damache v Director of Public Prosecutions [2012] IESC 11, on the 23rd of February 2012, section 29 of the Offences Against the State Act 1939 was found incompatible with the Constitution in permitting the issuing of search warrants by senior members of An Garda Síochána. Following that judgment, the three persons convicted at the first trial had those convictions overturned; The People (DPP) v Kavanagh, Farrelly and Corcoran [2012] IECCA 65 of the 24th of May 2012. There was then a retrial of those accused which started in the Dublin Circuit Criminal Court on the 7th of October 2013 and this trial included a further co-accused who was joined in those proceedings in circumstances where that was his first trial. That trial, not involving Niall Byrne and David Byrne, was also complex. It continued over 52 days and it resulted in the conviction of one of the four accused, the acquittal of another and a jury disagreement on the remaining two. Meanwhile, this judicial review was coming to trial. Hogan J heard the case over four days from the 14th of May 2013 and delivered his initial judgment on the 2nd of July 2013, with a revision approved two months later. That judgment was appealed to this Court by David Byrne, on Hogan J refusing to prohibit a third trial in his case, and by the Director of Public Prosecutions against the ruling by Hogan J that a third trial ought to be prohibited in the case of Niall Byrne.
Hogan J delivered his final judgement in this case on the 5th of September 2013; [2013] IEHC 396. The trial judge held after an analysis of the relevant case law that “there is what amounts to a working presumption against permitting a third trial following two successive jury disagreements.” Hogan J accepted, however, that there was no rule as such against a third trial, observing that much would “depend on the circumstances of each case.” The balancing of competing interests, Hogan J held, would require “compelling fresh evidence” as a factor which would enable a third trial after two prior jury disagreements. Notwithstanding the serious nature of the crimes, the trial judge held that the absence of any fresh evidence in the application of Niall Byrne meant that any further trial ought to be prohibited.
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S. O'B. v DPP
...endorsed the procedure of retrial and indeed in serious cases a possible second retrial ( Byrne v. Judges of the Dublin Circuit Court [2015] IESC 105, [2015] 2 JIC 1704 (Unreported, Supreme Court, 17th February, 2015)), it follows that any inevitable concomitants of such procedures, such as......