McCowan -v- DPP & ors, [2004] IESC 18 (2004)

Docket Number:43/03
Party Name:McCowan, DPP & ors
Judge:McCracken J.
 
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THE SUPREME COURT

43/2003

Murray J

Hardiman J

McCracken J

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

Judgment of Mr Justice McCracken delivered the 5th day of March 2004.

___________________________________________________________

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 1916 as amended. It appears that during the course of the trial the foreman of the jury stated that the jury were having difficulties with the verdict, at which stage the trial Judge indicated to the jury that they could consider alternative charges of assault with intent to rob and attempted robbery. The learned trial Judge amended the indictment to contain these alternative charges and the jury convicted the Appellant on foot of the two new charges. The learned trial Judge directed the jury to enter a verdict of not guilty in respect of the original charge of robbery.

The Appellant appealed to the Court of Criminal Appeal against the conviction on foot of the two added charges, and by order dated the 11th February 2002 the Appellant was given leave to appeal and the convictions were quashed in the following terms:-

"The Court doth grant the said application for leave to appeal and treating the hearing of the application as the hearing of the appeal the Court doth allow the appeal and doth quash the said conviction and sentence imposed in respect thereof.

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...

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