McCowan v DPP
 IESC 18
THE SUPREME COURT
LARCENY ACT 1916 S23
COURTS OF JUSTICE ACT 1928 S5
COURTS OF JUSTICE ACT 1928 S5(1)(B)
COURTS OF JUSTICE ACT 1928 S5(2)
Prohibition - Appeal - Retrial - Courts of Justice Act, 1928 - Whether a prosecution should be prohibited in circumstances where an alternative charge had been withdrawn from the jury (43/2003 - Supreme Court - 5/3/2004)
McCowan v DPP -
This is an appeal against the refusal by the High Court (O'Caoimh J) to grant an order of prohibition prohibiting the Respondents from taking any further steps or further proceedings in the prosecution of the Appellant pursuant to Bill No. DU 1027/99. These proceedings have a somewhat unusual history which it is necessary to set out in some detail.
The Appellant was tried in the Dublin Circuit Criminal Court on 7th December 2000 on foot of an indictment which originally contained only one count, namely robbery contrary to Section 23 of the Larceny Act And the Court doth order that the said Darren McCowan be retried for the offences the subject matter of the said conviction."
In purported reliance on the order of the Court of Criminal Appeal for the retrial of the Appellant, the date of 30th April 2002 was fixed for the retrial. On that day the Appellant was arraigned on foot of an indictment which contained only one charge, namely the original charge of robbery which had been contained in the original indictment. Apparently on his arraignment the Appellant told the Court that he had already been acquitted of that charge, and the presiding judge took the view that this was a plea of "not guilty". In due course a jury was empanelled and prosecution Counsel opened the case to the jury. At this stage Counsel on behalf of the Appellant applied to the learned trial Judge by way of a plea of autrefois acquit on the basis that the Appellant had already been found not guilty of this charge. Following legal argument, the learned trial Judge discharged the jury and made no further order.
A new indictment has now been prepared by the Director of Public Prosecutions, again in purported compliance with the order of the Court of Criminal Appeal, which contains a charge of attempted robbery. The Court has been informed that the Director of Public Prosecutions has decided not to proceed with the charge of assault with intent to rob, which was one of the charges added at the original trial by the learned trial Judge.
It is common case that an error was made by the prosecution authorities in drawing up the indictment for the retrial, although the Court has been given no explanation of how this error occurred. It is clear, however, that what occurred was an administrative error and no question of an abuse of process arises. Furthermore, neither has anything arisen in this case which could be said to suggest that the interest or rights of the Appellant have been prejudiced by that error, and indeed this was not alleged by him in the course of the appeal. It is also common...
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