|Byrne -v- Judges of the District Circuit Court & anor|
| IESC 105|
Supreme Court Record Number:
|405/13 & 538/13|
High Court Record Number:
|2012 155 JR & 2012 186 JR|
Date of Delivery:
Composition of Court:
|Denham C.J., Hardiman J., O'Donnell Donal J., Dunne J., Charleton J.|
|Dissenting Judgment by Mr. Justice Hardiman.|
NOTE: The judgment of Judge Hardiman is unapproved not having been approved by Mr Justice Hardiman prior to his untimely death.
Link to Judgment
Denham C.J., O'Donnell Donal J., Dunne J.
An Chúirt Uachtarach
The Supreme Court
Record number: 2012/155JR
Appeal number: 405/2013
The Judges of the Dublin Circuit Court and the Director of Public Prosecutions
Record number: 2012/186
Appeal number: 538/2013
The Judges of the Dublin Circuit Court and the Director of Public Prosecutions
Judgment of Mr Justice Charleton delivered on the 17th day of February 2015
1. At issue in this appeal is the extent to which an accused person may be tried again on a criminal charge when on prior occasions a jury has failed to reach a verdict. Niall Byrne the applicant/appellant and David Byrne the applicant/respondent are listed for trial together before the Dublin Circuit Criminal Court in the first term of 2015 on offences of kidnapping the wife and two children of an employee of Securicor and of robbing that firm of a large sum of money. Were the trial to take place it would be, in respect of each of these appeals, the third occasion when they would be tried. After two prior lengthy trials, juries were discharged deadlocked after being unable to agree unanimously, or by a majority of at least 10, that the accused were either guilty or not guilty.
2. The essential issue at each trial has been whether the accused were proved to have been involved in that offence. This was asserted on the basis of circumstantial evidence as there was no identification by the victims of their assailants. Violence and degradation characterise the crimes that led to these prosecutions. There is no question that the victims of them are exaggerating or that the offences did not take place. The question, rather, at trial has been whether the prosecution have proof beyond reasonable doubt that Niall Byrne and David Byrne, two unrelated men of the same family name, were part of the criminal gang that committed them. The main victim worked for Securicor in the transport of money for commercial purposes. As is well known, vans carrying money are heavily armoured and on at least some of them a sign can be seen stating that valuables within are kept locked in a safe to which employees have no access. Rather than outright robbery, therefore, intimidation has become an alternative method of theft from security companies and banks. That is what happened here. On the evening of Sunday the 13th March 2005, a man working for the security firm came home with his young son from ordinary family business and discovered on entering his home that his wife and other boy were being held at gunpoint by this gang. As would be expected, they were disguised. He was kept in his home and the two small boys and their mother were taken away at gunpoint. Overnight, and terrified as to their safety, he was told to follow particular orders with obvious menace as to the consequences of disobedience. Arriving for work on that Monday, therefore, he followed his routine of driving to work and clocking in as if in discharge of the normal duties of his life and employment. He followed instructions to drive a van of which he had charge to a pre-arranged location. His fellow employees were made part of the duress under which he operated through the gang photographing his imprisoned family under gun threat and which he, on orders, showed to them in earnest of his predicament. On the van reaching its destination, it was stripped of its contents, amounting to some €2.23 million; a sum that has never been recovered. The van driver had insisted prior to going in to work in speaking to his family, seeking an earnest of their safety. The phone on which that call was made was coloured purple and the driver was able to ascertain their safety before setting out as the puppet of the gang.
3. Meanwhile, the degradation of the dignity of these two children and their mother continued. They were held in the rear of a small van overnight in a location that was probably somewhere in the Dublin mountains. On the following day, the criminals took the family and tied them up deep inside a forest. They were left to fend for themselves without food, warmth or sanitation and terrified as to the safety of the other imprisoned member of the family. Eventually they untied themselves and sought out help when they found a public road. By this stage, the robbery had been completed. It would be totally unreasonable not to infer that considerable fortitude will be needed by that family to leave these events in the past. Clearly, an offence of this kind must be ranked with the worst kind of criminal conduct.
4. Thus far there have been two trials of the Niall Byrne and David Byrne. The first trial of Niall Byrne and David Byrne was together with three other men before the Dublin Circuit Criminal Court. It commenced on the 20th of April 2009, having initially been listed for the 12th of January of that year. It is a measure of its complexity that it lasted 65 days. Of the 5 accused in that trial, three were convicted but the jury in respect of Niall Byrne and David Byrne failed to agree a verdict. After that first trial, apparently it was thought that some time ought to be allowed to pass before a retrial should take place. It is difficult to know how fair and balanced reporting of court proceedings should require this. It was not until the 1st of February that a retrial was scheduled. On grounds of prejudicial publicity, Niall Byrne then sought a judicial review and was granted leave to initiate proceedings on 14 December 2009. In those proceedings a declaration was sought that no retrial ought to take place before October 2010 at the earliest. In the event, without that judicial review coming to a conclusion, a retrial date in respect of Niall Byrne and David Byrne was fixed for the 24th of October 2011. Additional evidence was apparently served by the prosecution in relation to David Byrne somewhat too late to be fairly considered in that trial, according to the ruling of the second trial judge. At this trial, the two men were tried alone and the case, nonetheless, lasted 25 days at trial. When the jury did not agree, the Director of Public Prosecutions indicated a proposed third trial date. This judicial review commenced by leave granted in the High Court on the 5th day of March 2012.
5. Other events were also taking place. By judgment of this Court in Damache v Director of Public Prosecutions  IESC 11, on the 23rd of February 2012, section 29 of the Offences Against the State Act 1939 was found incompatible with the Constitution in permitting the issuing of search warrants by senior members of An Garda Síochána. Following that judgment, the three persons convicted at the first trial had those convictions overturned; The People (DPP) v Kavanagh, Farrelly and Corcoran  IECCA 65 of the 24th of May 2012. There was then a retrial of those accused which started in the Dublin Circuit Criminal Court on the 7th of October 2013 and this trial included a further co-accused who was joined in those proceedings in circumstances where that was his first trial. That trial, not involving Niall Byrne and David Byrne, was also complex. It continued over 52 days and it resulted in the conviction of one of the four accused, the acquittal of another and a jury disagreement on the remaining two. Meanwhile, this judicial review was coming to trial. Hogan J heard the case over four days from the 14th of May 2013 and delivered his initial judgment on the 2nd of July 2013, with a revision approved two months later. That judgment was appealed to this Court by David Byrne, on Hogan J refusing to prohibit a third trial in his case, and by the Director of Public Prosecutions against the ruling by Hogan J that a third trial ought to be prohibited in the case of Niall Byrne.
The judgment of the High Court
6. Hogan J delivered his final judgement in this case on the 5th of September 2013;  IEHC 396. The trial judge held after an analysis of the relevant case law that “there is what amounts to a working presumption against permitting a third trial following two successive jury disagreements.” Hogan J accepted, however, that there was no rule as such against a third trial, observing that much would “depend on the circumstances of each case.” The balancing of competing interests, Hogan J held, would require “compelling fresh evidence” as a factor which would enable a third trial after two prior jury disagreements. Notwithstanding the serious nature of the crimes, the trial judge held that the absence of any fresh evidence in the application of Niall Byrne meant that any further trial ought to be prohibited.
7. In relation to David Byrne, the trial judge refused to prohibit the prosecution from pursuing a third trial. At paragraph 33 of his judgment, Hogan J stated:
8. In relation to both applicants, Niall Byrne and David Byrne, Hogan J summarised his conclusions in paragraph 20, the conclusion of his judgment, thus:
I am left with the impression that at a third trial the prosecution may be able to tender new evidence against Mr. David Byrne which, if the prosecution’s analysis were to be accepted (and I stress the conditional nature of this), is capable - to adapt the words of Kennedy L.J. in Henworth - of constituting “highly persuasive evidence” against him. I express no view on whether this is so or whether the prosecution ought to be able to establish this analysis before the jury. I would merely say that the evidence is capable of having a highly persuasive effect and it is this single factor which persuades me that, in contrast to the case of Niall Byrne, I should not grant an order restraining a third trial.
9. In the appeal by the Director of Public Prosecutions against the decision of Hogan J in the application of Niall Byrne, it is argued that it is neither oppressive nor unfair to permit a third criminal trial to take place. It is contended that as between the two competing interests, that of the applicant not to be subjected to a trial which is not in due course of law, and the entitlement of the public to see that offences are prosecuted, the balance leans in favour of the right of the public to prosecute offences because, in these particular circumstances there is no evidence that such a trial would not be fair. David Byrne, in his appeal, argues that Hogan J was incorrect in law in distinguishing between his case and that of Niall Byrne solely on “the purported strength of additional evidence now available … in any third trial.” It is minutely argued that this evidence is both unpersuasive and inadmissible. The Director of Public Prosecutions rejoins that the decision of Hogan J in relation to David Byrne was correct.
A. It is clear from cases such as the Supreme Court’s decision in DS that a third trial following two jury disagreements on the merits is presumptively excluded unless there are special and unusual circumstances. This, however, is merely a working hypothesis and is not a firm rule of law.
B. It is true that both applicants face very serious charges, a factor which in itself suggests that the public interest in pursuing the matter to finality on a third trial is very strong. In the present case, however, the fact that the applicants have already faced two lengthy trials culminating in jury disagreements is a factor which also pulls strongly in the opposite direction.
C. The prospect that new and potentially highly persuasive evidence will be available on a re-trial is also a strong factor suggesting that such a trial will be permitted.
D. As there is no new evidence against Niall Byrne, I consider that the fact that he has already faced two long trials which culminated in jury disagreements is decisive in his favour. A newly empanelled jury would be in no better position to arrive at a verdict than the two previously empanelled juries who could not arrive at a verdict and in these circumstances it would be unfair to submit him to the ordeal of a third trial. Based, therefore, on the principles enunciated by Kearns J. in DS, I would accordingly grant him an order of prohibition restraining his third trial.
E. Not without some hesitation, I have come to the opposite conclusion in the case of David Byrne for the sole reason that there is a prospect that the prosecution will be able to introduce new (admittedly circumstantial) evidence which may be of a highly persuasive character in a case which rests wholly on circumstantial evidence. It is this factor which, I think, tips the balance against him and which constitutes an unusual factual circumstances within the meaning of DS which points towards a re-trial. It is for this single reason that I would refuse to grant such relief in his case.
10. The first issue in this appeal is whether there is, as Hogan J stated, a working presumption against permitting a third trial of an accused person on a criminal charge. This requires an analysis of the relevant decisions. In the decision of the Court of Appeal of England and Wales to which reference was made in later Irish decisions, R v Henworth  EWCA Crim 120, no such working presumption is identified. Instead, at paragraph 18 references made to a convention before the courts of that jurisdiction is identified by counsel for the defence that if two juries have disagreed when presented with substantially the same evidence “the prosecution should only proceed against any given defendant if they consider that there are real prospect of obtaining a conviction from a jury.” Reference was also made to the decision of the Privy Council in Charles v The State  1 WLR 348 at page 387 to the statement of Lord Slynn that there was “a common practice, though not a rule of law, for the prosecution to offer no evidence were two juries have disagreed”. At paragraphs 25 and 26 of the decision in Henworth, Kennedy LJ stated:
11. In Michael McGealy v DPP  IEHC 472 Ó Néill J considered whether a third trial should be prohibited in circumstances where the applicant had, on the first trial, been convicted of all but two counts on the indictment and where the conviction was later overturned by the Court of Criminal Appeal, and had on a second trial resulted in a jury disagreement. Ó Néill J stated that the principal that he had identified in his own decision in DS v DPP (Unreported, High Court, Ó Néill J, 16 October 2006) was being misstated in argument in that case. The prohibition of a criminal prosecution because of multiple prior trials of the matter, he said, of balance:
Where a serious crime has been committed and it is shown that there is a case to answer as far as the defendant is concerned, there is a clear public interest in having a jury decide positively, one way or the other, whether the case is established.
Having said that, we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the seriousness of the offence or offences under consideration; and, fourthly, possibly, the extent to which the case now to be met has changed from that which was considered in previous trials.
12. The case referred to was the subject of a leading decision by this Court as DS v The Judges of the Cork Circuit and the DPP  4 IR 379 when it was appealed from the judgment of Ó Néill J. DS was a man who was charged with six counts of sexual assault, occurring about a decade earlier according to the prosecution, on two pre-teen girls. On his own application, in the indictment was severed so that the jury never knew the two girls were making similar applications. In respect of the first trial there was some kind of reference in the evidence of the alleged victim which led to the jury being discharged. Four months later there was a retrial and the accused was acquitted. Then the trial in respect of the second alleged victim took place four months later and the jury was discharged by the trial judge as deadlocked. Eight months later there was another trial on those offences and it ended with the jury acquitting the accused on one count but being unable to agree a verdict in respect of the remaining two counts. In all, therefore, DS had had four juries sitting in respect of that series of six alleged offences. Partly, that was is own fault as he was entitled to seek to sever the indictment but the result could not be later used as an argument for prohibiting trials which in consequence were a multiple of what they otherwise could have been. The Supreme Court held that the issue of multiple trials was not to be conflated with the principle against double jeopardy. There was, the Court held, no limit on the number of times a person might be prosecuted but it was not for to lay down a concrete rule in that regard. On the issue of the number of trials that might take place, Denham J, with whom Hardiman, Fennelly and Finnegan JJ agreed stated as follows at pages 387-388 of the report:
13. At page 389, Denham J did not declare that there could not be more than two trials, or even that there was a presumption to that effect but, rather, that “two full trials ending in disagreement may be a circumstance in which a further trial may not be commenced, may be a sound basis from which to review all the circumstances.” This is a matter of balance. The basis for prohibiting a third trial is not that, as Denham J stated at page 390, any “organ of state has set a limit on the number of trials which may be prosecuted.” The concern of the courts, rather, is to ensure that any such trial is fair. Denham J made that clear in the following passage from page 390:
The essence of the DS case is a balancing of two competing rights; the right of the applicant not to be subject to trial which is not in due course of law and the rights of the public to prosecute offences. The core principle is that the public have to have a fair opportunity to prosecute a criminal trial to its final conclusion. Mishaps can occur which may result in a re-trial, for example, if a jury is discharged. Where the Director of Public Prosecutions in a case which has no mishaps and which goes all the way, on two occasions to a jury, the balance tilts in favour of the applicant who may face risks. Here, unlike DS, the applicant faces similar offences in relation to 2 other complainants. As of this point in time the public’s right has not been fully vindicated yet. Cases similar to DS are rare where there are jury disagreements after two satisfactory jury trials.
The Court's duty is to protect due process. The test to be applied is whether there is real risk of an unfair trial. As Finlay C.J. stated in Z. v. Director of Public Prosecutions  2 I.R. 476, at p.506:-
"This Court in the recent case of D. v. Director of Public Prosecutions 2 I.R. 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances … he could not obtain a fair trial."
14. From that, it is clear that an examination of the facts is critical. It can be important that there has been proven stress and anxiety beyond what the normal course of a criminal trial entails. It can be important that there has been no change in the evidence from what was offered at any prior trial or trials. As Denham J put the matter at page 395: “Each subsequent trial becomes more oppressive and requires to be assessed objectively.” Her view was that what would be involved in the DS case, and what was prohibited, was a fifth trial. Kearns J, with whom Fennelly and Finnegan JJ agreed, after analysing several American and English cases, noted that in Attorney General v Kelly (No. 2)  1 IR 109 the Court of Criminal Appeal had clearly indicated that a jury which has not come to a conclusion had not put an accused in jeopardy. The issue in that case was whether an order of retrial upon appeal which results in a jury disagreement when the trial takes place constitutes the exhaustion of that order. Sullivan CJ stated that an order or retrial “contemplates a proceeding in which the guilt or innocence of the accused is determined.” The court was clear that there would be “no such determination when a jury is unable to agree on a verdict.” At p 114 of the report, he continued:
In each case there should be a balance sought between competing public interests. While protecting the public interest in prosecuting an accused, the integrity of the trial process also requires protection, guarding against the inherent dangers of repeat trials. A third trial may not per se be a breach of a trial in due course of law. All the facts of each case require to be considered.
15. That authority is cited in Ryan and Magee - The Irish Criminal Process (Dublin, 1983) page 432 for the proposition that an accused may be re-tried “any number of times until a jury agree on a verdict”, though the authors add, it seems on the basis of experience or research, that the prosecution will normally enter “a nolle prosequi after three disagreements.” While not citing that passage in the DS case, at pages 412-413, Kearns J stated:
16. From these judgments it is clear that while there is no working presumption that a third trial ought to be prohibited, it is also apparent that a point can come where further trials will be regarded as so oppressive as not to be in accordance with the constitutional guarantee of a criminal trial in due course of law in Article 38.1. More recently in AP v The Director of Public Prosecutions  1 IR 729, the issue of a fourth trial was considered again by this Court in the context of sexual offences on a very young child. Three trials started but on each occasion the trial judge stopped the trial on the basis that what had been said by the young girl was inadmissible and was prejudicial to the accused. Hardiman J at page 740 of the report was of the view that a fourth trial would not necessarily be an abuse of process but “the circumstances which could justify a fourth trial, whether after discharge or after disagreement, must be extremely rare and require to be fully established and explained by the [Director of Public Prosecutions].” Fennelly J, at pages 747-748 emphasised the burden of proof on an applicant for prohibition in the context where he had not shown any “particular element of unfairness”, no “evidence of stress or anxiety worthy of consideration” and no “evidence of any likely distress over and above what would naturally and inevitably be accompanied by any trial process.” He continued:
The word “re-trial” in its legal acceptation in such a context means, in the opinion of this Court, a complete and finished trial, and “whent there is no verdict there has been in law no trial”: per Crompton J. in Conway and Lynch v the Queen 7 I.L.T.R. 149 at p. 179. It is established beyond question that when a jury in a criminal trial have failed to agree on a verdict nad have been properly discharged, the accused may be put on trial again, and as often as may be necessary until the question of his guilt or innocence is determined by a verdict.
The decision of the Court cannot depend simply on whether the Court agrees with the decision of the Director to proceed to a further trial. The process of judicial review does not mean that the Court may substitute itself for the Director. It is appropriate in a case such as the present is to enquire whether the appellant has discharged the burden which is upon him to show that it would be a breach of his right to due process in the sense that it would be oppressive to put him on trial for a fourth time. Bearing in mind that, unlike D.S., the trial of the appellant never reached the stage where the jury was required to consider its verdict. On every occasion, the trial came to a halt during the evidence of the complainant. The Court has at best incomplete evidence as to the precise reasons for the discharge of the jury and cannot pronounce on the correctness or otherwise of the decisions of the trial judge. Ultimately, I do not believe that the appellant has shown grounds for prohibiting his further trial. I would dismiss the appeal.
17. In analysing this difficult question, the focus has been both on the danger that an accused would be oppressed by continual trials and on the growing danger that multiple trials will become unfair. The requirement that a criminal trial take place in “due course of law”, as guaranteed by Article 38.1 of the Constitution, incorporates not only balance in procedures but also a fundamental guarantee of fairness. In this context, while the rights of the community to see that serious crime is prosecuted are part of the balance together with the fair vindication of the wrong done to victims, on the other side is the need to ensure that those who are accused of crime and who are presumed to be innocent are not worn down by the same case being run again and again notwithstanding that having been fairly tried previously, not jury can agree that the prosecution have proven their case beyond reasonable doubt. Our system does not permit of an accused being exhausted into submission. That can amount to oppression. Nor does it permit of cases being run with such public notoriety over and over again that public confidence in the impartiality of the jury system is shaken. That may become unfair. Within the guarantee of a trial being in due course of law is the foundational requirement of every criminal conviction: that it be safe, which in our jurisprudence is the unassailable principle that a conviction does not occur unless the proof carries the certainty that the criminal standard demands. Multiple criminal trials can become an abuse of process. After a certain time, it may be possible to reasonable speculate that since three juries have disagreed, it may be that since majority verdicts are carried by at least 10 out of 12 jurors, that 9 people hearing the same case, at least, were of the view that the prosecution case was too weak to lead to a conclusion beyond reasonable doubt that the accused committed the crime. That consideration does not always arise where there have been two jury disagreements. While our democratic system rests on consent, it also rests on such fundamental bedrocks as the integrity of the system of pursuing those who are reasonably thought to have committed a serious crime. Totalitarian regimes are inevitably characterised by a lack of integrity in the criminal justice system. A conviction in our system must carry confidence; and absent extraordinary circumstances such as tampering with the jury, or the late discovery of seriously probative evidence, an instance of which would a DNA linking the accused to the crime, three trials ending in disagreement are surely the limit to which the prosecution may go. A situation where a jury convicted but that conviction was overturned and a retrial ordered by the Court of Appeal or this Court is obviously different. In that instance, apart from the distinction that such a result is not a jury disagreement after a full trial, there will have been a judicial determination that a retrial is to take place.
18. The second issue is to identify the circumstances whereby a third trial would not be the subject of an order of prohibition. At page 387 of the report in DS, Denham J identified some of the factors which should be considered in any application for prohibition on the basis of a multiplicity of trials:
19. Kearns J in the DS case identified the following factors at page 413 of the report as important to the consideration of whether a third or subsequent trial would be regarded as unfair:
First, there may be issues as to witnesses, their availability, and their statements. Secondly, there may be issues as to an earlier prosecution. Thus, the stage at which a first trial was reached is important. Did it fail before the trial commenced? Did it fail shortly after the trial commenced? Why? Was it due to the illness of jurors? Was something said before a jury which should not have been? Was there a disagreement? Obviously a situation where a trial was stopped early in the process, because of something such as the illness or absence of a juror, is entirely different to a situation where there has been a full trial but the jury could not reach a decision. Each situation requires to be considered in all the circumstances of the case. It is quintessentially a matter for the exercise of a discretion, and not for a hard and fast rule as to the number of prosecutions which may be brought.
20. In the AP case, Denham J returned to the possible criteria upon which a decision to proceed to a third, or as in that case a fourth, trial might be possible. At page 735 of the report she stated that the “public interest in prosecuting an accused should be protected but the integrity of the due process requirement requires protection also, guarding against the inherent dangers of repeated trials.” Each case required an analysis of the competing public interest, she said, and she identified these factors as important:
1. The seriousness of the offence or offences under consideration.
2. The extent, if any, to which the applicant may himself have contributed to any mishap which led to the requirement for a further trial. By way of example, the first trial of the applicant (in relation to the complainant TL) collapsed because of defence error. It would be in my view inappropriate to accede to a defendant’s request for relief where the applicant himself was the cause of the earlier trial mishap.
3. Any period of delay which is plainly excessive and beyond the norm for cases of the particular type and the reasons for such delay. A court will necessarily take into account in this context the considerable delay likely to arise in mounting any re-trial. It is now unusual to have a re-trial immediately after an aborted trial, such as occurred in years past, notably in The State v McMullen  2 I.R. 9, where the re-trial took place two days after the first trial.
4. The extent to which the case now to be met has altered from that which was considered in previous trials.
21. In the most recent reflection of the basis for a retrial after two prior jury disagreements in the neighbouring kingdom, R v Bell  EWCA, the Court of Appeal (Criminal Division) considered that a conviction for murder after two previous jury disagreements on substantially the same evidence was safe. Judge LCJ at paragraph 46 offered these observations in support of Judge Patience, the trial judge, who had permitted the third trial to proceed:
In considering a case to determine whether a retrial would be constitutional, all the circumstances require to be considered by a court. These may include many factors. For example, if the offences are serious (as they are here) that is an important element; if there has been prosecutorial delay which had a prejudicial effect on an accused's situation, that would be a factor; the length of time a case is in a legal system may be a relevant factor; and issues of stress and anxiety may be raised, evidence given, and be relevant in the circumstances. However, none of these factors, or indeed any others, fall to be considered in this case in light of the net issue before the Court.
22. In R v Flowers  1 WLR 2396, on appeal from Jamaica, the Privy Council did not overturn a conviction for murder and robbery on a third trial after two prior jury disagreements. Rather, a non capital conviction was substituted on different grounds. The discussion focused more on delay, which was found not to be such as to require upsetting the conviction.
We doubt the value of offering further guidance on the circumstances in which a second re-trial may be appropriate. We shall confine ourselves to reminding the Crown that the jurisdiction which permits the second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime bracket again, as here), on any fair-minded objective judgement remains very powerful.
23. In Canada, section 7 of the Canadian Charter of Rights provides:
24. In that jurisdiction, prohibition of a criminal trial is, as in this jurisdiction, an exceptional remedy; R v Babos  1 SCR 300 and see Moldaver J at paragraph 30-32. Debate as to multiple trials has focused on a third or fourth retrial after a jury disagreement. In R v Keyowski  1 SCR 657, the Saskatchewan Court of Appeal had prohibited a third criminal trial of the accused on a charge of criminal negligence causing death. Two previous juries had failed to agree on a verdict. On appeal to the Supreme Court of Canada, a third jury trial was allowed to proceed. At paragraph 8842, Wilson J stated:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
25. In R v Badgerow  ONCA 272 the Court of Appeal for Ontario ordered a fourth trial where the accused had first been tried for murder 20 years after the death of the victim. The delay was accounted for by the modern phenomenon of the development of DNA evidence from samples that had been kept from the body of the victim from a time when no such analysis had been possible. In this case, semen had been kept where the victim had been sexually violated and murdered. The first trial had resulted in a conviction, but this had been overturned on appeal and a new trial had been ordered. The second trial, which took place in 2010, ended in the jury being unable to agree a verdict. A third trial took place in 2011 and ended in the same way. There was then an application by the defence to stay the proceedings. The trial judge ordered a stay but the Court of Appeal overturned that order. Relevant and highly probative evidence had been excluded at all three trials. On an incorrect hearsay ground, overturned on appeal, testimony had been excluded which was that an emergency call two days after the murder which gave details of the killing that were only likely to have been known to the perpetrator had been traced to a payphone at the accused’s workplace. Because there had never been “a trial of the respondent at which all the properly admissible evidence had been placed before the jury for its consideration” this meant that the prosecution “never had an opportunity to try the respondent based on all the legally admissible evidence.” The approach of the court was one of balance, holding that the public interest in such a trial “outweighs any unfairness in trying the respondent a fourth time.” In permitting a third trial, among the factors which swayed the court of the seriousness of the charges and the consequent community interest in having matters brought to finality. There had been an earlier observation in the Manitoba Court of Appeal in R v Jack  2 SCR 334 at paragraph 11 by Scott CJM that “it would be a rare case indeed where putting an accused in jeopardy with respect to a serious charge for the fourth time would not constitute a breach of s. 7 of the Charter and an abuse of process sufficient to warrant a judicial stay of proceedings under s. 24(1) of the Charter.” At paragraph 202 and onwards, Strathy JA outlined the balancing test which might in “exceptional and very rare” cases justify a stay. Essentially, where probative evidence had wrongly been excluded at three earlier trials, the public interest justified a fourth trial.
While I disagree with the majority of the Court of Appeal that prosecutorial misconduct must be demonstrated in order to give rise to an abuse of process, I nevertheless agree with their conclusion that a new trial was properly ordered in this case. The appellant has, in my view, failed to demonstrate that this is one of those "clearest of cases" which would justify a stay. The charge is a serious one. The proceedings have not occupied an undue amount of time. The accused has not been held in custody, and, while he has undoubtedly suffered substantial trauma and stigma from the proceedings and the attendant publicity, he is probably not distinguishable in this respect from the vast majority of accused. A third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them. In these circumstances and having regard to the seriousness of the charge, I think that the administration of justice is best served by allowing the Crown to proceed with the new trial.
26. In New Zealand, the leading authority R v Barlow  2 NZLR 116 was subsequently affirmed following a conviction on a third trial; R v Barlow  2 NZLR 477. The defence application in the 1996 was for prohibition before the High Court. Two juries had been discharged deadlocked. The High Court rejected arguments that a third trial ought to be prohibited on the basis of abuse of process whereby the system of justice would be damaged by a third trial. This was notwithstanding prosecutorial guidelines to the effect that the interests of justice were generally served by discontinuing a prosecution after a second jury disagreement. Similar guidelines are published in this jurisdiction by the Director of Public Prosecutions. On a third trial, the accused was convicted. His appeal was to the Court of Appeal which noted previous examples of a third trial. There had been no unfairness in the conviction either by statute or under the New Zealand Bill of Rights Act 1990. On the guidelines, Henry J, giving the judgment of the court, stated at page 479:
27. As might reasonably be anticipated by anyone who has practised criminal, the repetition over three trials by witnesses of similar evidence may bring disadvantages to the prosecution apart from the advantages argued for before this Court on behalf of Nial Byrne and David Byrne. Advantages and disadvantages do not amount as such to necessary implications of such procedural unfairness that a trial should be prohibited. Henry J considered that argument in the context of the fairness of the conviction on the third trial in Barlow at page 479:
The guidelines do not and could not purport to control the exercise of the Court’s discretionary powers. Their only relevance for present purposes is to indicate the general practice which is adopted by the Solicitor-General. It is also relevant that he declined to exercise the power in this case. Comparable to New Zealand, it is common practice in England for the prosecution to offer no evidence after a second disagreement (Archbold’s Criminal Pleading Evidence and Practice (1995 Para 4-446). There is however no bar as such to a further trial. In Canada a third trial has been held not itself to constitute an abuse of process (R v Keyowski  40 CCC (3d) 481)
28. It follows from the foregoing analysis of the relevant authorities that central to whether there would be unfairness in trying an accused a third time after two prior jury disagreements on substantially the same evidence is: how serious the crime under prosecution was (some crimes such as murder and kidnapping and holding children at gunpoint are such as to weigh heavily on the balance); whether the complexity of the case may explain how a jury has been unable to agree a verdict previously (provided the prosecution has been presented reasonably, lengthy prior trials may be a factor which indicate an unusual degree of attention being required from a jury); whether the evidence is on the face of it such that a reasonable prosecutor would regard the case are strong (a case which is essentially a conflict of evidence between one or two prosecution witnesses and the accused is clearly much weaker than a case which is built upon apparently reliable admissions or upon circumstantial evidence which appears on the face of it to be inconsistent with any rational hypothesis based on innocence); whether there is evidence of oppression of an accused beyond what might be expected in the course of a re-trial (averments of stress that are not backed up by medical examination or other provable circumstances will be less weighty than objective evidence); whether the defence has contributed to jury disagreements through unfair means.
It was submitted that calling witnesses for the third time enabled defence arguments and fairly to be counteracted. That aspect of a retrial must of course work to the possible advantage of the defence as well as to the possible advantage of the Crown. A third trial may also well bring corresponding disadvantages to both sides. Furthermore the same complaint could be made in relation to a proposed second trial and has no greater validity when raised in relation to a third trial. In the present case Ms Cull cited only two examples of prejudice or unfairness. The first related to the evidence of Dr Stowell’s examination of bloodstains. These did not disclose any link between the scene of the homicides and the appellant. Under cross examination of the third trial, she elaborated for the first time in possible explanations for this absence. The second example concerned the fingerprint expert Mr McColgan, and his reconstruction of how to fingerprint is identified as the appellant’s could have been left on a pad found on the bedroom table at the scene. It was suggested that the witness’s demonstration had left for visible prints on the paper, all of which the jury may have wrongly attributed to the appellant when later viewing this exhibit. We can see no substance in either example. Neither can we discern any other area of procedural or practical unfairness which has been occasioned by the fact that a third trial took place.
29. Thirdly, and lastly, the role of the Director of Public Prosecutions in making such decisions should be respected. She will have a full view of the background circumstances, what may have gone wrong with the trial or trials beforehand, and the issue as to whether there remains a realistic prospect of conviction. While that view should be respected, it can also be demonstrated to be wrong. But the burden of proof in that regard is on an applicant who seeks to challenge a decision to prosecute again to show that that decision is wrong. As Denham J put the matter in DS at page 387:
30. Similar comments were made by Denham J at page 735 of the report in AP on that issue. At page 413 of the report in DS, Kearns J held that it was not necessary for an applicant for judicial review to show that the Director of Public Prosecutions had acted in bad faith in initiating a prosecution. Rather, the issue was whether there would be basic unfairness in allowing such a prosecution to proceed:
The decision-making power to bring a prosecution on indictment lies with the Office of the Director of Public Prosecutions, which is an independent office, established by statute. The decision to bring a prosecution depends on all the circumstances of a case. In some situations it may not be appropriate to bring a prosecution in the first instance, or for a second time, for good reasons. It requires an exercise of discretion on the matrix of facts. The circumstances will be different in every case.
31. As has been noted, in R v Barlow  2 NZLR 116, the New Zealand High Court indicated that the decision to retry a criminal case after a jury was discharged deadlocked was a matter for the prosecuting law officer’s discretion. That should only be interfered with in exceptional circumstances; see the judgment of the court at 120-121.
The case of Eviston v. Director of Public Prosecutions does, however, highlight that a court may invoke the concept of fair procedures to halt a prosecution in particular circumstances[;  3 IR 360]. In Eviston, the Court intervened to prohibit a prosecution in circumstances where the Director had decided - with ample grounds for doing so - not to prosecute Mrs. Eviston in relation to a driving offence. He later changed his mind in circumstances where the family of the deceased victim of the road accident in which Mrs. Eviston had been involved made representations by letter to the then Minister for Justice. The Director reversed his original decision without having any new or additional evidence and having already notified Mrs Eviston of his intention not to prosecute. Both the High Court and this Court had little difficulty in acknowledging the basic unfairness of allowing a prosecution to be brought in such circumstances. As stated by Keane C.J. at p.299:- “Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am forced to the conclusion that in circumstances where the respondent candidly acknowledges that there was no new evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to which, in all the circumstances, she was entitled.” In Eviston the Court intervened to prevent an unfair procedure and that intervention stopped the further prosecution of Ms. Eviston. While this Court did not characterise its intervention as one to prevent an abuse of process, it is difficult to see what complaint there could have been if the judgment had been based on abuse of process grounds.
32. Delay can be an important factor and while it is pleaded separately as a ground for prohibiting the trial, this factor is best considered in this case as part of the balancing exercise as to whether prohibition should be granted or not. While a great deal of time has passed since the original crime, and it will be 10 years should a third trial take place, much of the delay has been due to the complexity of the investigation that the crime necessitated and the particularity of proof required to apparently demonstrate the involvement, but the prosecution claim, of Niall Byrne and David Byrne. Delay has been occasioned as well by the judicial review taken by Niall Byrne claiming an entitlement to have the entire Internet swept of any comment in relation to him; Byrne v DPP  IEHC 383 (Charleton J, Unreported, High Court, 11 November 2010). The issue there was put thus in paragraph 1 and was never likely to succeed:
33. This judicial review coincided with another judicial review by Niall Byrne seeking a delay to ensure the publicity about the first trial faded from public memory but the delay in taking the Internet judicial review brought more than sufficient lapse of time.
The various declaratory reliefs sought by the applicant can be condensed to this: Niall Byrne wants the internet wiped clean of any publicity or comment about the charges which he faces or the conduct of a previous trial where the jury failed to agree a verdict against him or in his favour. He asserts that an accused person has the right to demand that the Director of Public Prosecutions should search the internet in order to find any sites containing material that might be regarded as prejudicial to the prospect of a fair trial. Thereafter, it is argued, the Director of Public Prosecutions should write to the relevant internet service providers and demand that any offending material should be taken down. In the event of non-compliance, an application should be made to court in that regard. The danger otherwise faced by the applicant, it is argued, is that jury members will conduct their own researches during the course of the applicant’s forthcoming trial, find some of the material complained of and reach conclusions prejudicial to the case he may be asserting at the trial.
34. Then there is the issue of complexity; which can sometimes explain why juries have not agreed a verdict in prior trials. What the prosecution need to prove is the interaction over the course of the kidnapping between 8 or 9 mobile telephones, what numbers were called by what other numbers, whether to voicemail were to live conversation, at what particular times and from what particular durations and being rooted through which telecommunications masts which might result in a correlation with other complex evidence as to location from the inception of the crime, to the residence of the victims, to the place of their abduction and the place from which they managed to free themselves on the completion of the crime. On any fair reckoning, that is a complex case. It would not be correct for any court on appeal to characterise evidence as strong or to go beyond the application of a test that a reasonable prosecutor might regard a case as strong enough to merit retrial. In contrast, were this a case of one person alleging an offence were a fair opportunity had already been taken in simple circumstances of fact to test the strength of that allegation against countervailing defence submissions or evidence, the result would be different.
35. The seriousness of the crime is central to any consideration as to whether a third jury trial ought to be permitted. In the AP case, Denham J regarded the seriousness of the offences to be tried to be of considerable importance in adjudicating on where the balance of justice lay after two trials. Kearns J was particularly influenced by the “scale of gravity” of the surviving charges in DS “as being at the less serious end of the spectrum.” The trial judge in the High Court in this case noted the contrast between the gravity of the facts in this crime with that under consideration in that case; nonetheless he prohibited the further trial of the applicant David Byrne. This crime is of the grossest dimensions. Children were held and abducted at gunpoint, people were tied up in a forest on the understanding of those who imprisoned them that ties which held them could eventually be undone but with no expectation and no thought of care for their safety should that be a miscalculation. A loving husband and father was coerced into acting contrary to his duty and instincts as a family man and as a loyal employee. Overall, an air of menace hung over the fate of each member of the family that was made captive and subjected to armed duress. Would those involved in these offences, whoever they were, have killed any member of this family? One cannot know but it is more than reasonable to infer that this had to be a worry for every one of the victims. Considered in the round, there is little that is worse.
36. Hogan J differentiated the case of Niall Byrne, prohibiting that trial because there was no new evidence from the second trial, from that of David Byrne in which there would be. That factor emerges as if it is necessary as a matter of law to have new evidence after two juries have disagreed before a third trial could be permitted. The case law does not support any such decision. It would be a mistake to regard the existing case law as requiring fresh and apparently credible evidence before a third trial following two prior jury disagreements to be permitted. There is no authority for that. Instead, the availability of fresh evidence is merely part of the balance. It is not, further, any part of the balance that emerges on the existing decisions as either being normally decisive or even very important. It is not at the top of any judge’s list of criteria as to whether a third trial ought following two prior jury disagreements should be prohibited.
37. It follows that the foregoing remarks as to the appropriate balance apply equally to Niall Byrne, in respect of which there is no new evidence be offered at a third trial, and to David Byrne, in respect of whom some fresh evidence that had not been admitted at the second trial will be offered by the prosecution. For the sake of completeness, the case against David Byrne is based on the use of a purple mobile telephone which had been offered to the main victim of the crime when he insisted, while under captivity and with his family abducted elsewhere, in discovering whether or not they remain safe before agreeing to act under coercion in relation to the robbery. This purple phone is claimed by the prosecution to be associated with David Byrne. Apparently the case against him rests on three possible pillars. Firstly, there is a prosecution witness, in respect of whom an accomplice warning had been given by the trial judge in the two previous trials, who claims that he had rung David Byrne and talked to him while David Byrne was using the purple phone. Secondly, the prosecution claim to rely on a video of a man who is said to look like David Byrne, noting the infirmity of identification evidence as adumbrated by this Court in The People (Attorney General) v Casey (No 2)  IR 33, and, thirdly and lastly, some additional evidence which apparently was served late and ruled out by the trial judge in the second trial but which the prosecution claim will make a substantial difference to the possibility of success in their endeavour. It is best to characterise that evidence not in accordance with the affidavit testimony which has been put before this Court on appeal, but which has been contested as to its accuracy by vigorous submissions, but by reference to what Hogan J stated in summary about it in the High Court paragraph 46 and 47 of his judgement thus:
38. It is best to leave the summary at that on this appeal. A court engaged in judicial must, from time to time, comment on contested facts and thus must resolve such facts as are necessary for a decision. Hogan J was careful in avoiding straying into even ostensible-fact-finding in respect of the contested criminal trials that are forthcoming. Similarly, on this appeal it has appeared bytimes as if the Court were being asked to supplant the trial judge; asked effectively to deliver rulings on the admissibility of telephone evidence on European law grounds and having contested aspects of evidence as to witnesses put up for apparent decision. The Court should not do that. Those are matters for the trial judge; Byrne v Grey  IR 31.
The new evidence consists mainly of an analysis of certain telecommunications records relating to what came to be described as the “purple” mobile telephone. Evidence had already been given at the first and second trials that the purple telephone had been used at a critical stage in the robbery and kidnap of the Richardson family. It was thus the telephone which was used by the kidnappers at about 2.30 am in the early hours of 15th March 2005 to enable Ms. Richardson to speak with her husband. Closed circuit television evidence from a Texaco filling station on the evening of the robbery (allegedly) shows Mr. David Byrne purchasing credit for this mobile phone. Three separate mobile telephones were also found in Mr. Byrne’s car - which was a taxi - which had been parked in the driveway of his house. These telephones were given the designations DOC 1, DOC 2 and DOC 3 respectively at these earlier trials.
The new evidence on which the prosecution would now seek to rely at any further trial requires a subtle and painstaking analysis of these telecommunications records with a view to showing that a (now deceased) person known to Mr. David Byrne and with whom he was in contact during this period - namely, one Terence Dunleavy - telephoned the purple mobile telephone on 14th March 2005. The prosecution will accordingly seek to invite the inference that the late Mr. Dunleavy telephoned the purple telephone in the belief that by doing so he could speak to or otherwise contact Mr. David Byrne, thus connecting him (i.e., Mr. Byrne) in a material way with the kidnap by reason of his possession of or his access to that telephone.
39. Were there to be a requirement for fresh evidence following two jury disagreements, how is it to be analysed? Whereas some previous authorities considering the balance have required new evidence following two trials to be compelling or devastating or highly persuasive, it seems that much of that language is simply rhetorical or was not necessary to the decision made. Nor is any such language helpful. Evidence may reasonably be characterised as ostensibly credible and capable of adding significantly to the weight of the prosecution case. If there is part of the balance for new evidence to be offered before a third trial should be allowed to take place, then the foregoing would seem to be the rational test that should be applied. On the face of it, that evidence in relation to David Byrne meets that test. In so stating, no comment can be made as to whether a jury will find such evidence credible, as to whether it will break down in terms of proof or as to whether it would ultimately be regarded as a puff of smoke as opposed to substantial evidence weighing heavily in the balance in terms of the case which the prosecution wished to make. No court on appeal could have any such notion beyond the legal appearance of what fresh evidence might seem to offer and, expressly, no comment is made as to its strength or weakness.
Focus of trial
40. A criminal trial must have focus. It is in no sense an exercise whereby allegations may be put to prosecution or defence witnesses either without express instructions or where an apparent situation does not arise through reasonable inference from the evidence. The building blocks of the prosecution case will be apparent from the book of evidence and will clarify over the course of the case as to what is contested and as to what is important. From the point of view of the defence, it would appear that an error of approach by defence counsel is becoming generally manifest in many trials. It was of considerable concern that on appeal this Court was told that during the course of the first hearing, taking some 65 days in 2009, the main victim who had been held at gunpoint on returning to his home and finding his wife and two small children already captive, had it suggested to him that he was complicit in this crime. On the face of the facts, no such suggestion could be made. There was nothing in the prosecution case that could reasonably suggest to any advocate whose client had given instructions of no involvement in the crimes that this central prosecution witness was in fact part of a plot of kidnapping, firearms intimidation and abduction. Were such a suggestion to be floated, the result could have been a follow-up step of suggesting to the trial judge that an accomplice warning to the jury ought to follow. The courts enquire into allegations of criminal wrongdoing on the basis of adversarial contention by the prosecution and the defence. This does not leave defence counsel at large. Central to their task is to ascertain in respect of each witness what case a client wishes to make as a matter of fact; not as a matter of tactics or, worse, mischief. Should a client wish to allege that a person who happens to be a prosecution witness was complicit in a crime with them, or that they are in possession of information suggesting this, then on such specific instructions an unpleasant allegation may be put.
41. Absent such specific instructions, it is only if circumstances point on a rational basis to criminal complicity that counsel are entitled to use their position to attempt to undermine a prosecution witness as an accomplice. Cross examination in a criminal trial is not at large. The defence of those accused of crime, no more than the defence of those accused of a civil wrong, is not a matter of fiction. No one would consider telling a client what his or her defence ought to be: that would be making up a story. Rather, the client is the author of instructions and the advocate puts those instructions throughout the course of the trial. Confusion perhaps arises due to the entitlement of an accused not to offer any defence case. That can arise in a civil case as well. For instance, an employer is accused of negligence due to the action of an employee. Where the defence is that the employee was acting outside the scope of employment, there is no need to put questions to any of the plaintiff’s witnesses. But if there is a point of fact to be contested on the instructions of the client, that case should be put to the relevant witness: but, nothing more than that unless it arises reasonably on the entirety of the case as it emerges in court and consistently with instructions. Cross-examination should be focused. If it is not, then cases become unwieldy and more than difficult to try. A trial judge is entitled to, and is required to maintain, focus so that irrelevant speculations do not sidetrack a case. Any court is entitled to expect that allegations put to witnesses, who are presumed to be innocent and who have a right to their good name, arise from counsel doing their duty to put unpleasant matters on instruction or from inferences that reasonably arise on the case consistent with those instructions. In The People (DPP) v Hawkin  IECCA 36 at paragraph 14, the Court of Criminal Appeal clarified the scope of the duty of counsel on cross examination thus:
42. It is unnecessary to add to that clarification beyond recording that the mistake to which these remarks are directed was not that of counsel appearing on this appeal. Lack of focus in a prior trial may also be examined in the overall balance as to whether a further retrial should be permitted.
Certainly, it is the case that, if a client chooses, the prosecution case may simply be challenged as to the credibility of witnesses without any positive case being put forward on behalf of an accused person. That, however, is not a course which is generally taken. Such instructions are highly unusual. Here, the decision is with the client. Counsel appearing on behalf of an accused is always acting on the instructions of the client. The task of counsel is neither to accept nor to reject their client’s case but to put the case of the accused to witnesses as it is relevant to their testimony. Cross-examination is not at large. It is directed to such elements of defence as counsel are instructed by their client.
43. While a decision by the Director of Public Prosecutions to order a third criminal trial after juries have failed to agree a verdict on two prior occasions is at the extreme pole of prosecutorial discretion, it is not necessarily an abuse of process or an infringement of the right of the accused to a trial in due course of law. With the availability of majority verdicts, of 10:2 or 11:1, not solving the issue of whether an accused should be found guilty or not guilty on two prior occasions, the legal structure whereby a jury cannot reach a verdict ordinarily requires that three or more jurors not concur in a verdict. A fourth retrial of a deadlocked case carries the risk with repetition that the very high level of confidence that a guilty verdict carries in our system might be undermined. For that reason, simple numbers indicate that with at least nine jurors required to disagree from a guilty verdict in three successive criminal trials ending in a jury deadlock, that number of retrials, three, on jury disagreements ought to be the limit, absent extraordinary circumstances. A trial and a retrial are, on their own and even without any evidence of a medical nature, stressful for an accused and for the victims of the crime. Where cases involve relatively simple allegations by the prosecution and counter evidence or argument by the defence, a jury can be expected to reach a verdict on either the first or second trial. The fact that a jury cannot do so, absent particular difficulties that might arise during the course of the trial, indicates that two trials ending in disagreement have shown up a lack of compelling strength in a prosecution case. The limit of prosecutorial discretion may therefore have ordinarily been reached at that point. Where cases involve unusually grave crimes and an assembly of complex facts, a third trial remains possible where two prior juries have disagreed. The case facing Niall Byrne and David Byrne meets the criteria identified in the case law for permitting a third trial notwithstanding two prior jury disagreements and should not, therefore, be prohibited.
44. The appeal in respect of the Director of Public Prosecutions seeking a retrial in the case of Niall Byrne ought therefore to be allowed and the appeal by David Byrne seeking to restrain his trial should be dismissed. In the result, both trials may proceed.