McCowan v DPP

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice McCracken
• Judgment Date: 05 March 2004
• Neutral Citation: [2004] IESC 18
• Date: 05 March 2004
• Docket Number: 43/2003,[S.C. No. 43 of 2003]

[2004] IESC 18

THE SUPREME COURT

Murray J

Hardiman J

McCrackenJ

43/2003

McCOWAN v. DPP & JUDGES OF DUBLIN CIRCUIT COURT

Between:

Darren McCowan

Applicant/Appellant

AND

The Director of Public Prosecutions and The Judges for the Circuit of the County of the City of Dublin

Respondents

Citations:

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)

Synopsis:

CRIMINAL LAW

Autrefois acquit

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of Justice Act, 1928 - Whether a prosecution should be prohibited in circumstances where an alternative charge had been withdrawn from the jury (43/2003 - Supreme Court - 5/3/2004)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 - [2004] 1 IR 211

Facts: The applicant was tried in the Dublin Circuit Court on 7 December, 2000 on foot of an indictment, which originally contained only one count, namely robbery contrary to section 23 of Larceny Act, 1916 as amended. The jury indicated to the trial judge that they had encountered difficulties reaching the verdict and accordingly the trial judge informed the jury that they could consider the alternative charges of assault with intent to rob and attempted robbery. The trial judge amended the indictment to contain two charges and the applicant was convicted by the jury of both. The trial judge directed the jury to enter a verdict of not guilty in respect of the original charge of robbery. The applicant appealed his conviction and on 11 February, 2002 the convictions and sentence were quashed and the court ordered that the applicant be retired for the offences the subject of the conviction. Subsequently the applicant was arraigned on foot of an indictment which contained the original charge of robbery only. On his arraignment, the applicant told the court that he had already been acquitted of that charge, the presiding judge took the view that this was a plea of ‘not guilty’. At the beginning of the retrial, counsel on behalf of the applicant applied to the trial judge by way of a plea of autrefois acquit on the basis that the applicant had already been found not guilty of this charge. The trial judge discharged the jury and made no further order. A new indictment was prepared by the DPP and contained the charge of attempted robbery only. Consequently the applicant made an unsuccessful application to the High Court to grant an order of prohibition prohibiting the respondents from taking any further steps or further proceedings in the prosecution of the applicant. The applicant argued that when the matter had been withdrawn from the jury in the second trial, the effect of that was that there were no further charges remaining on the indictment and that it was spent. He further argued that the effect of withdrawing the robbery charge from the jury was that the criminal proceedings against him had been concluded.

Held by the Supreme Court (Murray, Hardiman, McCracken JJ) in dismissing the appeal: 1. That the power given to the Court of Criminal Appeal by virtue of Section 5 of the Criminal Justice Act, 1928, relating to retrials is not the power to order a retrial in the sense that it makes it mandatory on the prosecution to retry the accused, but rather that its power is limited to ‘authorising’ a retrial. It is not mandatory for the prosecution to initiate a retrial.

2. That section 5 of the 1928 Act authorised the retrial of the applicant on the charges which were before the Court of Criminal Appeal, and only those charges. In the second trial, the applicant was not retried for the same offence as that which was the subject of conviction before the Court of Criminal Appeal, nor was he again indicted for such an offence. Instead, it was mistakenly sought to retry him for an offence for which he had already been acquitted, and to indict him for that offence. Accordingly, the authority given by the Court of Criminal Appeal pursuant to section 5 of the 1928 Act has not yet been exercised and it remains a valid authority. The indictment which the DPP now seeks to bring before the court, and the retrial which he seeks, are both in accordance with the authority given by the Court of Criminal Appeal and are a perfectly valid exercise of that authority.

Reporter: L.O’S.

Judgment of

Mr Justice McCracken

1 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...