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. [Nem Diss]
___________________________________________________________

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 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 case that the learned trial Judge in the first trial was entitled to, and did validly, amend the original indictment by adding the additional charges.  

The Appellant argues that when the matter was withdrawn from the jury in the second trial, the effect of this was that there were no further charges remaining on the indictment and that it is now “spent”.  The Appellant further argues that the effect of withdrawing the robbery charge from the jury is that the criminal proceedings against him have been concluded.

The Respondent argues that the order of the Court of Criminal Appeal only directs a retrial in relation to the additional charges.  It is argued that, while on the second trial the charge of robbery was quite properly withdrawn from the jury on the basis that the Appellant had already been acquitted of that charge, nevertheless the Appellant has never been retried in relation to the charges referred to in the order of the Court of Criminal Appeal, and therefore he is not being put into any further jeopardy by the fresh indictment alleging attempted robbery.

The power of the Court of Criminal Appeal to order a retrial and its consequences are set out in Section 5 of the Courts of Justice Act 1928.  Subsection (1)(b) provides:-

“Where the Court reverse a conviction in whole, the Court shall have jurisdiction to make an order (in this section referred to as an order for a retrial) authorising the person in respect of whom such conviction was obtained to be retried for the same offence as that which was the subject of such conviction….”

Subsection (2) provides:-

 “Whenever an order for a retrial is made under this section by the Court of Criminal Appeal or the Supreme Court the person in respect of whose conviction the order was made may, notwithstanding any rule of law, be again indicted and tried and, if found guilty, sentenced for the offence which was the subject of such convictions.”

The first matter to be noted from these provisions is that the power given to the Court of Criminal Appeal is not to order a retrial in the sense that it makes it mandatory on the prosecution to retry the accused, but rather its power is limited to “authorising” a retrial.  It is perhaps unfortunate that the subsection refers to the order authorising the retrial as “an order for a retrial”, and indeed it is perhaps unfortunate that in the present case, as I think has become the practice of the Court of Criminal Appeal, the order takes the form of an order that the person accused be retried.  However it seems to be clearly understood by the Respondent, and no point has been taken by the Appellant, that it is not mandatory for the prosecution to initiate a retrial.  The prosecution was clearly within its rights in deciding not to proceed with a retrial in relation to the third charge.  

What the Section orders, and indeed what the Court of Criminal Appeal clearly intended, is to authorise the retrial of the Appellant on the charges which were before the Court of Criminal Appeal, and only on those charges.  This is emphasised by the provisions of Section 5(2), to the effect that the accused is to “be again indicted … for the offence which was the subject of such conviction”.  In this second trial, the Appellant was not retried for the same offence as that which was the subject of the conviction before the Court of Criminal Appeal, nor was he again indicted for such 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.  

I am of the view that the authority given by the Court of Criminal Appeal pursuant to Section 5 of the 1928 Act to retry the Appellant has not yet been exercised, and it remains a valid authority.  The indictment which the Director of Public Prosecutions 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.  

It has also been submitted on behalf of the Appellant that in any event the learned trial Judge at the second trial did not make any order directing that the matter be returned for the purpose of fixing a new trial date, and that in the absence of such an order the trial cannot proceed.  This was not a ground upon which leave was given to apply for judicial review, and quite correctly was not dealt with in the judgment of O’Caoimh J.

In any event it remains a matter for the Director of Public Prosecutions, in accordance with the discretion vested in him, to proceed with a retrial as authorised by the order of the Court of Criminal Appeal, and for the Court of trial to make such other orders as it considers appropriate and to try the Appellant in accordance with any such orders.

Accordingly I would dismiss the appeal.