Cosgrave v DPP

• Jurisdiction: Ireland
• Judgment Date: 26 April 2012
• Date: 26 April 2012
• Docket Number: [S.C. No.
• Court: Supreme Court

Cosgrave v. Director of Public Prosecutions

Liam Cosgrave

Applicant

and

The Director of Public Prosecutions, Ireland and The Attorney General

Respondents

[2012] IESC 24,

[S.C. No. 322 of 2011]

Supreme Court

Criminal law - Process - Trial - Prosecution of offences - Trial in due course of law - Role of Director of Public Prosecutions - Abuse of process - Duty to bring all prosecutions at first opportunity - Obligation to inform of potential prosecution - Accomplice - Corroboration warning - Whether prosecution abuse of process, oppressive or unfair - Whether charges based on substantially same set of facts or similar offences - Whether real risk of unfair trial - Whether court should prohibit trial proceeding - Whether court could review decision of prosecutor.

In 2005, the applicant was charged with, and pleaded guilty, to a single count of knowingly making a false or misleading declaration pursuant to s. 25 of the Electoral Act 1997.

In 2010, further charges of corruptly receiving sums of money contrary to s. 1(1) of the Public Bodies Corrupt Practices Act 1889, as amended, were brought against the applicant. The applicant claimed that the prosecution of these further charges by the first respondent was an abuse of process,inter alia, in circumstances where, in 2005, the first respondent had all the evidence necessary to prosecute the applicant on the corruption charges and where, in 2005, full disclosure was not made to the applicant. The applicant submitted that, in 2005, he had a legitimate expectation that no further charges would be brought and that the first respondent was not permitted to bring sequential trials on an ascending level of gravity.

The High Court (Hedigan J.) refused the reliefs sought (see [2011] IEHC 312). The applicant appealed to the Supreme Court.

Held by the Supreme Court (Denham C.J., Murray and Fennelly JJ.; Hardiman and O'Donnell JJ. dissenting), in dismissing the appeal, 1, that there was a general rule at common law that the prosecution should join, in the same indictment, charges founded on the same, or similar, or substantially the same, facts. However, there were exceptions to this rule. A second trial on the same, or similar, or substantially the same, facts was not necessarily oppressive. There might be particular circumstances which made it appropriate in that case.

Connelly v. Director of Public Prosecutions [1964] A.C. 1254 followed.

Per Hardiman J.: An exception to the general rule was ruled out where no evidence was brought forward to explain why the applicant was not charged with all offences at the first opportunity.

Per O'Donnell J.: If the offences could have been joined in the same indictment then they should have been joined, unless there were special circumstances which would justify a judge in exercising discretion not to apply that rule. What was required for a departure from the general principle of joinder of all matters arising out of the same set of circumstances was a justification for a process of separate trials. If there was a difficulty with one, then that would be a reason to defer both, rather than to depart from the general principle of joint trial.

2. That the court retained a discretion to protect an accused against an abuse of process such as to give rise to a real risk of an unfair trial.

• R. v. Beedie [1998] Q.B. 356 followed.

3. That it was not the function of the court to review the prosecution's case. An application to prohibit a trial would be acceded to only in exceptional circumstances where it was necessary to protect a fair trial process, such as where there had been an abuse of process so as to give rise to a real risk of an unfair trial.

• D.C. v. Director of Public Prosecutions [2005] IESC 77, [2005] 4 I.R. 281 followed. State (McCormack) v. Curran[1987] I.L.R.M. 225 and Carlin v. Director of Public Prosecutions [2010] IESC 14, [2010] 3 I.R. 547 considered.

4. That the offence of failing to declare on a donation statement receiving a donation exceeding £500 was neither the same, nor of a similar character, as a charge of corruptly receiving a sum of money as an inducement to, or reward for, voting in a particular way. These offences were different in nature, degree and moral turpitude.

Per O'Donnell J. (dissenting): Too narrow an approach should not be taken to the concepts of "same facts" or "offences of a similar character". In certain circumstances non-compliance with disclosure requirements of the Electoral Act 1997 created a presumption of corruption.

5. That there was no duty on the first respondent to inform a person of a potential prosecution, nor was there a duty to disclose information to a potential accused which was relevant to a future potential prosecution.

6. That in cases where there were charges of corruption of public officials there was a very significant public interest in permitting such allegations to proceed to trial. It was necessary to balance the applicant's right to reasonable expedition in the prosecution of the charges with the community's right to have the criminal offences prosecuted.

Per Hardiman J. (dissenting): 1. That the rule that a litigant might not make a case in legal proceedings which might have been, but was not, brought forward in previous litigation applied to civil as well as criminal cases. There was no reason of policy or otherwise why that should not be so. The degree of distress and harassment caused to an individual who was subjected to multiple litigation in criminal cases was, to say the least, not less than that suffered by a person similarly treated in civil proceedings.

Henderson v. Henderson (1843) 3 Hare 100 followed.

2. That once a person had been identified as an accomplice in any crime, he was a witness whose evidence required a corroboration warning. This requirement could not be avoided by editing his statement to suggest that he was not, in fact, an accomplice at all.

3. That including hearsay evidence in an affidavit caused unfairness and placed a person at a considerable disadvantage because it was impossible to challenge by cross-examination. This evidence should be provided by a witness who could speak of it from his or her own knowledge, so that the evidence could be challenged by cross-examination if desired.

Per O'Donnell J. (dissenting): 1. That, while broader principles attached to criminal prosecutions in which the public interest was an issue in contrast to inter partes civil proceedings, that distinction was more relevant to the question of whether there were special circumstances justifying departure from the principle, rather than to the existence of the principle itself.

2. That it was important to have regard to certain matters in considering whether an exceptional case existed which justified the separate trials of matters which could have been tried together, such as the rehabilitation of the accused and the options that would have been open to the accused had all of the cases been tried together. These were matters in which both the accused and the public had an interest.

Cases mentioned in this report:-

A.A. v. Medical Council [2003] 4 I.R. 302; [2004] 1 I.L.R.M. 372.

Arklow Holidays Ltd. v. An Bord Pleanála [2007] IEHC 327, (Unreported, High Court, Clarke J., 5th October, 2007).

Attorney General for Gibraltar v. Leoni (Unreported, Court of Appeal for Gibraltar, 19th March, 1999).

Attorney-General v. Linehan [1929] I.R. 19; (1928) 63 I.L.T.R. 30.

Barker v. Wingo (1972) 407 U.S. 514.

D.C. v. Director of Public Prosecutions [2005] IESC 77, [2005] 4 I.R. 281; [2006] 1 I.L.R.M. 348.

Carlin v. Director of Public Prosecutions [2010] IESC 14, [2010] 3 I.R. 547; [2010] 2 I.L.R.M. 145.

Cosgrave v. Director of Public Prosecutions [2011] IEHC 312, (Unreported, High Court, Hedigan J., 28th July, 2011).

Cox v. Dublin City Distillery (No. 2) [1915] 1 I.R. 345.

D. v. Director of Public Prosecutions [1994] 2 I.R. 465; [1994] 1 I.L.R.M. 435.

Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 2 W.L.R. 343; [1954] 1 All E.R. 507; (1954) 38 Cr. App. Rep. 11.

Dental Board v. O'Callaghan [1969] I.R. 181.

Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260; [2003] I.L.R.M. 178.

Glencar Exploration p.l.c. v. Mayo County Council (No. 2)[2002] 1 I.R. 84; [2002] 1 I.L.R.M. 481.

Henderson v. Henderson (1843) 3 Hare 100; 67 E.R. 313.

Johnson v. Gore Wood & Co. [2002] 2 A.C. 1; [2001] 2 W.L.R. 72; [2001] All E.R. 481.

McFarlane v. Director of Public Prosecutions [2008] IESC 7, [2008] 4 I.R. 117.

McNee v. Kay [1953] V.L.R. 520; [1953] A.L.R. 1061.

P.M. v. Malone [2002] 2 I.R. 560.

S.M. v. Ireland [2007] IESC 11, [2007] 3 I.R. 283; [2007] 2 I.L.R.M. 110.

O'Flynn v. District Justice Clifford [1988] I.R. 740.

The Queen v. Elrington (1861) 1 B. & S. 688; 121 E.R. 870.

Rex. v. Baskerville [1916] 2 K.B. 658; 12 Cr. App. Rep. 81.

R. v. Beedie [1998] Q.B. 356; [1997] 3 W.L.R. 758; [1997] 2 Cr. App. Rep. 167.

Reg. v. Connelly [1964] A.C. 1254; 1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401; (1964) 48 Cr. App. Rep. 183.

R. v. Green (1825) 1 Craw. and Dix. 158.

R. v. Mattu [2009] EWCA Crim 1483, [2010] Crim. L.R. 229.

Reg. v. Riebold [1967] 1 W.L.R. 674; [1965] 1 All E.R. 653.

Regina v. Stanton (5 Cox, Cr. Cas. 324).

Regina v. Walker (2 Mrr. & R. 446).

State (McCormack) v. Curran [1987] I.L.R.M. 225.

Woodhouse v. Consigna p.l.c. [2002] EWCA Civ 275, [2002] 1 W.L.R. 2558; [2002] 2 All E.R. 737.

Z. v. Director of Public Prosecutions [1994] 2 I.R. 476; [1994] 2 I.L.R.M. 481.

Appeal from the High Court

The facts have been summarised in the headnote and are more fully set out in the judgments of Denham C.J., Hardiman and O'Donnell JJ.,infra.

The applicant issued a notice of motion dated the 9th March, 2011, seeking, inter alia, an order permanently restraining the first respondent from continuing to prosecute him. The proceedings came on for hearing before the High Court (Hedigan J.) on the...