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URL: http://www.bailii.org/ie/cases/IESC/2012/S24.html
Cite as: [2012] IESC 24

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Judgment Title: Cosgrave v DPP & anor

Neutral Citation: [2012] IESC 24

Supreme Court Record Number: 322/2011

High Court Record Number: 2011/211JR

Date of Delivery: 26/04/2012

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J.

Judgment by: Denham C.J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Concurring
Denham C.J.
Appeal dismissed - affirm High Court Order
Murray J., Fennelly J.
Hardiman J.


Outcome: Dismiss




THE SUPREME COURT
No.322/2011

Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
O’Donnell J.






Between/

Liam Cosgrave
Applicant/Appellant
and

The Director of Public Prosecutions

Ireland and the Attorney General

Respondents

Judgment delivered on the 26th day of April 2012 by Denham C.J.

1. At issue in this appeal is whether the Court should prohibit a criminal trial proceeding. Such an application may succeed only in exceptional circumstances. The burden rests upon the person seeking such a remedy to show that on the facts of the case there has been an abuse of process so as to give rise to a real risk of an unfair trial.

2. Liam Cosgrave, the applicant/appellant, referred to in this judgment as “the appellant” has brought an appeal from the order and judgment of the High Court (Hedigan J.) which was given on the 28th July, 2011, and which refused the reliefs sought by the appellant.

Notice of Motion
3. The appellant sought an order permanently restraining the Director of Public Prosecutions from prosecuting him on the current charges. By Notice of Motion dated the 9th March, 2011, the appellant had sought by way of judicial review the following reliefs in the High Court:-

        “(i) An Order permanently restraining the first named respondent herein from continuing to prosecute [the appellant] in respect of the charges alleged against him in Bill Number 1216/2010 at present pending before the Dublin Circuit Criminal Court;

        (ii) A Declaration that the initiation and continuation of the prosecution of the appellant on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate [the appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where [the appellant] has already been prosecuted, has pleaded guilty, has been convicted and sentenced on Bill No. DU 430/2005 for an offence arising from the same factual matrix grounding the instant prosecution on Bill No. DU 1216/2010;

        (iii) An order against the first named respondent pursuant to Order 84, Rule 20, of the Rules of the Superior Courts staying the further prosecution of [the appellant] herein on the charges complained of herein until the determination of these proceedings.”

The reliefs were sought against the Director of Public Prosecutions, referred to as “the DPP”, Ireland and the Attorney General, the respondents, who are referred to collectively as “the respondents”.

Grounds
4. The appellant sought the relief generally on the grounds that the prosecution was an abuse of process. The specific grounds upon which this relief was sought were set out in the statement grounding the application for judicial review and were as follows:-

        “(i) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities prosecuted the [appellant] on Bill No. DU 430/2005 while having been then, in 2005, in possession of the Statement of Witness Frank Dunlop dated 16th day of March 2004 which forms the evidential basis to the current charges.

        (ii) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities prosecuted the [appellant] on Bill No. DU 430/2005 while having been then, in 2005, in possession of the Memo of Interview of Liam Cosgrave dated 3rd day of March 2004 which now forms Exhibit 22 of the book of evidence in Bill Number 1216/2010.

        (iii) The initiation and continuation of the prosecution of the [appellant] on Charge 20 alleged in Bill number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities in 2005 prosecuted the [appellant] on a book of evidence with regard to Bill Number 430/2005 containing the following statement of evidence from Witness Frank Dunlop:

            ‘I confirm that at the recent sittings of the Flood Tribunal (now the Mahon Tribunal) at Dublin Castle in the course of the “Carrickmines 1 Module”, I gave on oath the following evidence in relation to payments made to Liam Cosgrave Esq:-
… 2. IR £2,000 cash between the 12th of June, 1992 and the 29th of June, 1992.’
        (iv) The initiation and continuation of the prosecution of the [appellant] on Charges 21, 22, 23 and 24 alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities in 2005 prosecuted the [appellant] on a book of evidence with regard to Bill Number 430/2005 containing the following statement of evidence from Witness Frank Dunlop:

        ‘I confirm that at the recent sittings of the Flood Tribunal (now the Mahon Tribunal) at Dublin Castle in the course of the ‘Carrickmines 1 module’, I gave on oath the following evidence in relation to payments made to Liam Cosgrave Esq:-

            …9. IR £2,500 cash on or about 30th October, 1997;

            10. IR £4,500 cash on or about 23rd December, 1997;

            In 1997 I made a number of payments to Mr. Cosgrave detailed as follows:

            4. On the 30th October 1997 I gave in cash to Liam Cosgrave the sum of IR £2,500 at a meeting in the Davenport Hotel (Dublin). This payment had nothing to do with election expenses or political contributions.

            5. On the 23rd of December I gave in cash to Liam Cosgrave the sum of IR £4,500 at a meeting in Buswell’s Hotel (Dublin). This payment had nothing to do with election expenses or political contributions.’

        (v) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the [appellant] has already been prosecuted, has pleaded guilty, has been convicted and sentenced on Bill No. DU 430/2005 for an offence arising from the same factual matrix grounding the instant prosecution on Bill No. DU 1216/2010.

        (vi) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the prosecuting authorities failed to disclose all statements of Frank Dunlop, including those the subject matter of this prosecution, when requested to do so in the context of the prior prosecution in Bill Number 430/2005.

        (vii) The [appellant] who denies the allegations is now being asked to meet charges which date back to 1997 and as far back as 1992 in circumstances where there are little if any islands of fact or documentation which would aid recollection of events that far back.

        (viii) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill No. DU 1216/2010 amounts to a breach of the first and second named respondents duty under section 3 of the European Convention on Human Rights Act 2003 by failing to perform their functions in a manner compatible with Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Strasbourg on the 22nd day of November 1984 and in particular, the second named respondent is thereby in breach of its obligations under the said protocol and under the European Convention on Human Rights.

        (ix) The cumulative and combined effect of the above factors brings the instant case within the category of cases in which it is unfair or unjust to put the accused on trial.”

Notice of Opposition
5. The respondents filed a notice of opposition denying the grounds pleaded. The statement of opposition stated:-
        “(i) It is denied that the [appellant] is entitled to the relief sought or to any relief.

        (ii) The [appellant] has not established that there is a real risk that he will not obtain a fair trial on the charges out of which this application arises.

        (iii) The [appellant]’s trial on the charges out of which this application arises will not breach the [appellant’s] right to a fair trial either under the Constitution or under the European Convention on Human Rights.

        (iv) The initiation and continuation of the prosecution of the said charges against the [appellant] does not amount to an abuse of process and is neither oppressive nor unfair.

        (v) There has been no inordinate or inexcusable delay in prosecuting the offences with which the [appellant] is charged.

        (vi) Further or in the alternative there has been no blameworthy or culpable delay in the prosecution of the offences with which the [appellant] is charged for which the respondents, their servants or agents, are responsible.

        (vii) Without prejudice to the above, it is denied that the elapse of time in this case (regardless of its case [sic]) is sufficient to give rise to a real risk of an unfair trial.

        (viii) It is denied that, in 2005, there was sufficient evidence to put the [appellant] on trial for the offences with which he is now charged.

        (ix) The respondents have not failed in any duties they may owe to the [appellant] pursuant to section 3 of the European Convention on Human Rights Act 2003, either as alleged or at all.

        (x) In particular it is denied that the initiation and continuation of the prosecution of the [appellant] amounts to a failure by the first and second named respondents to perform their functions in a manner compatible with Article 4 of Protocol No. 7 to the European Convention on Human Rights. The [appellant] is not being tried or punished again in criminal proceedings for which he has finally been acquitted or convicted in accordance with law. The [appellant] has not previously been tried or punished in respect of the offences that he now faces.

        (xi) It is denied that it would be oppressive, unfair or unjust to put the [appellant] on trial.

        (xii) In so far as the [appellant] is seeking to make some sort of double jeopardy argument in paragraph E(5) of the Statement of Grounds it is denied that the [appellant’s] prosecution on the earlier matters bars his current prosecution. It is further denied that the offences have the same factual matrix.

        (xiii) It is denied that the earlier prosecution of the [appellant] in respect of a distinct matter in any way detracted from the duty of the first named respondent and An Garda Síochána to investigate and prosecute the subject matter of the charges laid against the [appellant].

        (xiv) At all material times the [appellant] was aware that the first prosecution was not the end of the matter and that further investigations were being carried out.

        (xv) In all the circumstances the [appellant] did not have any legitimate expectation that he would not be prosecuted in respect of the charges that he now faces.

        (xvi) Any complaint as regards inadequate disclosure in the first prosecution (which is denied) has no impact on the right and duty of the first named respondent to proceed with the prosecution out of which these proceedings arise. Any issues as regards disclosure in the first prosecution were a matter for the trial judge in that case.

        (xvii) Should his trial proceed the [appellant] will not suffer any prejudice, either as alleged or at all.

        (xviii) The cumulative or combined effect of any of the matters to which the [appellant] has referred does not operate so as to bring his trial within the category of cases that are inherently unfair or unjust.

        (xix) In all of the circumstances of the case the [appellant] is not entitled to the relief sought or any relief.”

Charges
6. The appellant was arrested and charged on the current charges on the 26th October, 2010. On the 28th October, 2010, the appellant was returned for trial on five charges, charges 20 to 24, of the Book of Evidence, in Bill Number 1216/2010, which are pending before the Dublin Circuit Criminal Court.

7. It is alleged that the appellant, in his role as a County Councillor, corruptly received sums of money from Frank Dunlop as inducements or rewards for voting in a particular way on motions before Dublin City Council and Dun Laoghaire Rathdown County Council relating to lands at Carrickmines in Dublin, contrary to s. 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by s. 4(2) of the Prevention of Corruption Act, 1916, and s. 38 of the Ethics in Public Office Act, 1995.

8. The charges are:-

      Charge Sheet No. 10903486

      For that you the said accused did, on a date unknown between the 12th day of June 1992 and 29th day of June 1992, both dates inclusive, within the State, being a member of Dublin County Council, a public body, corruptly receive a sum of money, as an inducement to or reward for voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

      Contrary to Section 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

      Charge Sheet No. 10903453

      For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive a sum of money, as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

      Contrary to Section 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act, 1995.

      Charge Sheet No. 10903501

      For that you the said accused did on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive a sum of money as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

      Contrary to Section 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act, 1995.

      Charge Sheet No. 10903526

      For that you the said accused on the 23rd day of December 1997 at Buswells Hotel, within the County of the City of Dublin being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive a sum of money, as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

      Contrary to Section 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act, 1995.

      Charge Sheet No. 10903534

      For that you the said accused did on the 23rd day of December 1997 at Buswells Hotel, within the City of Dublin, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive a sum of money, as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

      Contrary to Section 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act, 1995.

These charges are referred to as “the current charges”.

Statements of Frank Dunlop
9. On the 15th October, 2003, Frank Dunlop gave a statement to the Garda National Bureau of Criminal Investigation (NBCI) stating that he made 10 payments to the appellant between 1991 and 1997. These payments include the sums on the current charges in relation to £2,000 in June, 1992; £2,500 on 30th October, 1997; and £4,500 on 23rd December, 1997. On the 20th November, 2003, Frank Dunlop gave a further statement to Gardaí giving further details of payments. These two statements, together with a letter from Frank Dunlop to a manager of AIB Bank on 26th February, 2004, were in the Book of Evidence in Bill No. 430/2005 relating to the non declaration of an electoral donation received by the appellant. Details of these statements are set out later in the judgment.

Previous Charges
10. Previously the appellant was charged with offences under the Electoral Act, 1997. the two charges were:-

        “Charge Sheet No. 369580

        1. For that you the said accused on or about the 14th day of January 1998 at Lower Ormond Quay, Dublin 1 in the Dublin Metropolitan District, at a time when you were a member of Seanad Eireann, knowingly made a statutory declaration before William Egan which was false or misleading in a material respect, namely that you declared that a donation statement made by you pursuant to section 24(1)(a) of the Electoral Act, 1997 was to the best of your knowledge and belief, correct in every material respect and that you took all reasonable action in order to be satisfied as to its accuracy, whereas the said statement was incorrect in that it failed to declare that you had received any single donation exceeding a value of £500 received between the 15th day of May 1997 and the 31st day of December 1997, both dates included in the circumstances where you had received such a donation or donations.

        Contrary to section 25(1)(d) and 25(2)(b) of the Electoral Act, 1997.

      Charge Sheet No. 369581

      2. For that you the said accused on or about the 29th day of January 1998 at The Public Office Commission, 52 St. Stephen’s Green, Dublin 2 in the Dublin Metropolitan District at a time when you were a member of Seanad Eireann knowingly furnished a donation statement pursuant to section 24(1)(a) of the Electoral Act, 1997 which was false or misleading in a material respect, namely that you failed to declare therein that you had received any single donation exceeding a value of £500 or donations from the same person with an aggregate value exceeding £500, received between the 15th day of May 1997 and the 31st day of December 1997, both dates included, in circumstances where you had received such a donation or donations.

Contrary to sections 25(1) and 25(2)(b) of the Electoral Act, 1997.”

These charges are referred to as “the Electoral Act charges”.

11. On the 17th October, 2005, the appellant pleaded guilty in Dublin Circuit Criminal Court to a single count of knowingly making a false or misleading declaration on the 29th January, 1998, in relation to donations in excess of £500 received between the 15th May and the 31st December 1997, inclusive, contrary to s. 25 of the Electoral Act, 1997. On the 6th May, 2006, the appellant was sentenced to 75 hours community service in lieu of 6 months imprisonment.

12. Judgment of the High Court on previous charges:-
On the 28th July, 2011, the High Court (Hedigan J.) delivered judgment, and stated in relation to the Electoral Act charges:-

        “6.1 On 15th and 21st of October, 2003, Frank Dunlop gave statements to the Garda NCBI [sic], alleging that he paid the [appellant] IR£ 2,000 in June 1992, IR £2,500 in October 1997 and IR £4,500 in December 1997. On 16th March, 2004, Mr. Dunlop made a further statement to gardaí, alleging that the above payments were made to the [appellant] in return for voting in favour of rezoning lands at Carrickmines. Shortly before this, on 3rd March, 2004, the [appellant] was interviewed by Garda CAB. During the course of that interview, he was asked whether the payments in question were corrupt payments. He denied receiving any corrupt payments. On 22nd October, 2004, a file was sent to the DPP. This file included evidence gathered by gardaí attached to both the NCBI [sic] and the CAB. On 11th April, 2005, the [appellant] was charged with knowingly making false or misleading declarations on two dates in January 1998, contrary to section 25 of the Electoral Act 1997. The [appellant]’s solicitors wrote to the respondents in relation to these charges on 27th April, 2005, seeking disclosure of all statements made by Mr. Frank Dunlop. The respondents disclosed the statements of 15th and 21st October, 2003, but not the statement of 16th March 2004, and a draft statement of 24th September, 2004. On 17th October, 2005, the [appellant] pleaded guilty to a single count of knowingly making a false or misleading declaration contrary to section 25 of the Electoral Act 1997. He was subsequently sentenced to 75 hours community service.”
13. Judgment of the High Court on current charges
In relation to the current charges the learned High Court judge held:-
The learned High Court judge refused the relief sought by the appellant. It is against that judgment that the appellant brings this appeal.

Grounds of Appeal
14. The appellant has appealed to this Court, having filed the following grounds of appeal:

        “(i) The learned High Court judge erred in fact and law in refusing to grant the relief sought.

        (ii) The learned High Court judge erred in law in holding that as the statement made by Frank Dunlop to Gardaí on the 24th September 2004 was a draft statement, there therefore was no obligation to disclose it to the [appellant] at the time of his prosecution in 2005.

        (iii) The learned High Court judge erred in fact and law in finding that the statement of Frank Dunlop of the 16th March 2004 was not relevant as the [appellant] was not facing corruption charges in 2005 and therefore did not fall to be disclosable. This was in circumstances where the respondents never made the argument that this statement was not relevant.

        (iv) The learned High Court judge failed to advert to the ongoing obligation on the prosecution to make disclosure in the context of the statement of Frank Dunlop of the 28th July 2005

        (v) The learned High Court judge misconstrued the [appellant’s] argument in relation to disclosure and the respondent’s response to it.

        (vi) The learned High Court judge misconstrued the argument put forward in relation to legitimate expectation by the [appellant].

        (vii) The learned High Court judge misconstrued the argument of the [appellant] in relation to the failure to disclose the statement of Frank Dunlop dated the 16th March 2004.

        (viii) The learned High Court judge erred in law and fact in failing to differentiate between the civil and criminal investigation functions of the Criminal Assets Bureau.

        (ix) The learned High Court judge erred in law and fact in construing the [appellant’s] arguments for relief as being principally in relation to the doctrine of legitimate expectation or the issue of immunity.

        (x) The learned High Court judge erred in law and fact in misconstruing the [appellant’s] argument on delay and the respondent’s response to this.

        (xi) The learned High Court judge misconstrued the respondent’s argument on delay in relation to this [appellant’s] case.

        (xii) The learned High Court judge erred in law and fact by failing to deal with the [appellant’s] central argument that his position had been prejudiced by an admitted failure to disclose relevant statements by the prosecution at the time of his first trial in 2005.

        (xiii) The learned High Court judge erred in law and fact in failing to deal with the [appellant’s] argument that the present prosecution in the context of the admitted failure of relevant disclosure in 2005 amounted to an abuse of process.

        (xiv) The learned High Court judge erred in law and fact in failing in his duty to protect due process and the right to a fair trial of the [appellant] which rights were interfered with by the prosecution’s failure to make relevant disclosure in his original trial in 2005.

        (xv) The learned High Court judge failed to deal with the [appellant’s] submission in relation to the principle in Henderson v. Henderson [1843] 3 Hare 100 as followed and applied by the Superior Courts in this jurisdiction.

        (xvi) The learned High Court judge erred in fact and law in finding that although the [appellant] may well have held an honest belief that his original trial in 2005 was ‘the end of matters’ in relation to allegations by Frank Dunlop against him, that this was not a reasonable belief in all of the circumstances absent some clear indication from the DPP.

        (xvii) The learned High Court judge erred in law and fact in failing in his duty to protect due process and the right to a fair trial of the [appellant].”

Submissions on behalf of the appellant
15. Counsel on behalf of the appellant filed written submissions and made oral submissions. Counsel stressed certain matters in oral submissions, including that the prosecution had all the evidence on 22nd October, 2004, upon which to bring these current charges, and that full disclosure was not made in 2005. Counsel did not dispute that the appellant was aware, in 2004, that Frank Dunlop had made allegations of corruption against him, but, it was submitted, they did not know whether Frank Dunlop had made a statement or statements alleging corruption by the appellant outside the Tribunal of Inquiry into Certain Planning Matters and Payments. While the appellant was charged with electoral offences in 2005, it was submitted that it was considered that that was all he was going to be charged with. Counsel submitted that at that time the appellant and his legal advisers believed that Frank Dunlop had not made allegations of corruption in writing to An Garda Síochána of the appellant. It was submitted that this was a legitimate belief at that time, and that the appellant was misled. It was submitted that correspondence in 2004 and 2005 from the Criminal Assets Bureau was indicative that there would not be a criminal prosecution. The interviews with the appellant by the Criminal Assets Bureau were referred to, and, it was submitted, that there was no suggestion that the appellant was being pursued over allegations of corruption. It was submitted that, in accordance with fair procedures, the appellant should have been made aware at that time that Frank Dunlop had made statements in writing against the appellant on issues of corruption. It was submitted that the appellant was entitled to know when he was being prosecuted under the Electoral Acts that there were other matters which he would have to deal with. Further, it was submitted that the appellant pleaded guilty to the Electoral Act charges, and faced up to the consequences. Counsel submitted that they were led to believe that if the appellant pleaded guilty to the Electoral Act charges that there were no further statements by Frank Dunlop suggesting that the money he referred to were corrupt statements. Counsel argued that the appellant had an entitlement, before pleading guilty to the first set of charges, to know what other statements were in the possession of the State. It was submitted that there was abuse of process, that there was a risk of an unfair trial, that the misconduct by the prosecution was so grave that the Court should intervene, that as a matter of principle there should not be succeeding prosecutions, that the charges should all be in one indictment. Counsel submitted that it was not open to the DPP to sit on the evidence he had about corruption and then bring it forward five years later. A key argument to which counsel returned several times was that two written statements of Frank Dunlop were not disclosed in 2005, and that if the appellant had had that information he might not have pleaded guilty. Counsel accepted for argument’s sake that Frank Dunlop had to be prosecuted before others were prosecuted, but asked why Frank Dunlop was not prosecuted in 2004. Counsel referred to the issue of delay, and submitted that the DPP had all the evidence in 2004. Counsel stated that there was no claim of mala fides by the DPP but it was submitted that there had been no explanation from the DPP, especially as to the non-disclosure of the statements in 2005. In essence, counsel submitted that there should be no sequential trials on an ascending level of gravity; that while there may be exceptions, it was for the DPP to prove this was an exception.

Submissions on behalf of the Respondents
16. Counsel on behalf of the respondents also filed written submissions and made oral submissions. Counsel submitted that this was a case raising the issue of abuse of process and that legitimate expectation had been an issue in the High Court. Counsel accepted that the nub of the case was that in the circumstances it was for the respondents to show the special circumstances which apply. In essence, counsel argued that the prosecution could not bring forward the corruption charges in 2004 because the witness they depended upon, Frank Dunlop, had not been prosecuted before the courts, and his evidence could not have been relied upon safely. The prosecution for corruption could not be brought without Frank Dunlop’s evidence. Until Frank Dunlop had been tried, convicted and assented to give evidence, the evidence of Frank Dunlop could not be the basis for a prosecution against the appellant. Prior to his conviction, Frank Dunlop might have declined to give evidence on the grounds that it would incriminate him. Also, he might have been cross-examined to the effect that he was giving evidence against the appellant in the hope that the State would perhaps not prosecute him or would go easy on him. The DPP did not give a statement of the reasons for prosecuting as he did, but counsel argued that the situation was clear from the documents before the Court. Counsel accepted that the onus was on the respondents to explain why there was no prosecution for corruption brought in 2005.

As to the submission that the appellant was not aware that Frank Dunlop had made written statements, that he was entitled to assume that there would be no more prosecutions, and that thus the appellant submitted that this prosecution was an abuse of process, counsel relied on paragraph 13 of the written submissions on behalf of the respondents. The said paragraph 13 stated:-

      “All the appellant had to do if he had the slightest doubt about the position with regard to the corruption investigation was to ask the DPP as to whether that investigation was now closed and whether any decision had been made in respect of it. It is submitted that the appellant was not entitled to allegedly reach that conclusion in his own mind, without communicating it to the DPP, and then seek to rely upon that conclusion as against the DPP. This failure to make any specific inquiry of the DPP is all the more remarkable when one considers the communications between the appellant's solicitors and An Garda Síochána at the relevant time. For example, Garrett Sheehan & Partners wrote to D/Chief Superintendent McKenna on 5 April 2005 (exhibit RE4), which correspondence refers to the suggestion that the appellant had received payments and had taken various steps on foot of those payments in relation to the rezoning of lands at Carrickmines, Co. Dublin. Garrett Sheehan & Partners pointed out that the appellant had denied in the interview conducted on 3 March 2004 that he had ever received a corrupt payment from Frank Dunlop. The correspondence goes on to say that in any event the DPP had directed that charges under the Electoral Act be preferred against the appellant and that that would take place on 11 April 2005. The letter goes on to say that ‘in those circumstances it is not appropriate for Mr. Cosgrave to meet with you at this time.’ It is submitted that the text of this letter makes it crystal clear that, at the time when the appellant was dealing with the Electoral Act charges, he was fully aware of the existence of the outstanding investigation into corruption. Had the appellant been of the belief that, as a consequence of the fact that he was to be charged with two offences under the 1997 Acts, he would never be prosecuted in respect of whatever emerged from the corruption investigation that is surely something in respect of which one might have anticipated clarification would have been sought from the DPP.”
Further, it was submitted that the payments charged under these set of charges are not the same set of payments as charged under the Electoral Acts. Counsel submitted that this case was an exception to the general rule that all the charges be brought on the same indictment. It was submitted that the charges in issue on this occasion are not a separate set of charges on the same set of facts.

Decision to prosecute
17. The decision to prosecute the appellant on the current charges was made by the DPP, who provides an independent prosecution service. Pursuant to s. 2(5) of the Prosecution of Offences Act, 1974, “the Act of 1974”: “The Director shall be independent in the performance of his functions”.

18. The effect of the Act of 1974 was described by Keane C.J. in Eviston v. Director of Public Prosecutions IESC 62; [2002] 3 IR 260 at 290 as:-

      “The effect of the Act of 1974, was thus to vest in the [DPP] the function of prosecuting all crimes and offences, in courts other than those of summary jurisdiction, in the name of the people. It was clearly envisaged by the Oireachtas that the [DPP] in performing those functions, would exercise the same role as had historically been performed by the Attorney General. In contrast to the systems in many civil law jurisdictions, the courts play no role in the prosecution of offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions exclusively assigned (with limited exceptions) to the [DPP] under the Constitution and the relevant statutory provisions.”
He noted further:
      “Undoubtedly, the [DPP] remains subject to the Constitution and the law in the exercise of his functions and it has been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to a greater extent than is normally the case with quasi-judicial tribunals properly so described, he will be restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.”
19. Thus, fundamentally, the DPP is an independent prosecutor, who makes the decision as to when there should be a prosecution. The courts will interfere with the decision of the DPP rarely, when applying the Constitution and the law.

20. In State (McCormack) v. Curran [1987] ILRM 225, the Supreme Court held that the decision of the DPP may be reviewed in certain circumstances. Finlay C.J. stated at p. 237:-

      “If, of course, it can be demonstrated that he reached a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of the [DPP] that his decisions were not as a matter of public policy ever reviewable by a court.”
21. An accused may claim that to continue with his prosecution would be unjust, for reasons such as delay or prejudicial publicity. Where such a person establishes that there is a real risk that he could not obtain a fair trial, an order of prohibition will be granted: D v. D.P.P. 2 I.R. 465; Z v. D.P.P. [1994] 2 I.R. 476.

22. In Carlin v. D.P.P. [2010] IESC 14; [2010] 3 IR 547; [2010] 2 ILRM 145, the appellant claimed that the decision of the DPP in changing his mind and proceeding to prosecute would be unfair and unjust. The Court dismissed the appeal. The role of the DPP was discussed at paragraphs 7, 9 and 10 :

      “The Director is an important independent office in the State and independent in the performance of his functions: Prosecution of Offences Act, 1974. A clear policy of non-intervention by the courts in the exercise of the discretion of the prosecutor, except in particular circumstances, has been stated in cases over the last few decades. An independent prosecutor is an important part of the fabric of a fair justice system. The prosecutor must not only be independent but be seen to be independent. If the Director is seen to change his decision where there are no new factors but simply after representations by a victim or his family, it raises issues as to the integrity of the initial decision and the process, and thus may impinge on confidence in the system. It is important that a prosecutor retain the confidence of society in his process of decision making. […]

      It is essential that the Director remain independent. However, he is subject to the constitutional requirement of fair procedures. While the fair procedures appropriate at the investigation stage of a prosecution are not equivalent to those at trial in a court of law the process requires to be constitutionally firm.

      In a situation where there is no statute of limitations on the prosecution of the offence, and where there are no statutory time limits on the duration of a prosecution process, it is important that such process be fair, and be seen to be fair.”

23. It is not the function of the Court to review the prosecution’s case. An application to prohibit a trial will be acceded to only in exceptional circumstances where it is necessary to protect a fair trial process, such as where there has been abuse of process. The intervention by a court in the prosecution process was referred to in D.C. v. DPP 4 I.R. 281 at 283 where it was stated:-
      “Such an application [for the prohibition of a trial] may only succeed in exceptional circumstances. The Constitution and the State, through legislation, have given to the Director of Public Prosecutions an independent role in determining whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having taken such a decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial. In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.

      It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial.”

24. Thus, the Court will grant an order prohibiting a pending trial only in exceptional circumstances to protect a fair trial process. Analysis of the process includes the question as to whether or not there has been an abuse of process by prosecuting on one set of charges in 2005 and another in 2010.

25. As to whether or not there is unfairness will depend on all the circumstances of the case. Each case requires to be determined on its own facts. Thus, it is necessary to consider the facts of this case.

Facts
26. The appellant is charged with corruptly receiving money as inducements or rewards for voting in a particular way in 1992 and 1997. On the 19th October, 2000, Frank Dunlop gave evidence at the Tribunal of Inquiry into Certain Planning Matters and Payments, referred to as “the Tribunal”, alleging that he made corrupt payments to councillors. On the 3rd July, 2003, the Standards in Public Office Commission wrote a letter of complaint to the DPP in relation to suspected offences of the appellant under the Electoral Acts. On the 15th October, 2003, and 20th November, 2003, Frank Dunlop made statements and provided documents to the Garda Síochána in relation to alleged payments made to the appellant between 1991 and 1997. On the 3rd March, 2004, the appellant was interviewed by members of the Criminal Assets Bureau in relation to the allegation of corruption. On the 8th June, 2004, the appellant was interviewed by members of the National Bureau of Criminal Investigation for suspected offences under the Electoral Acts. On the 22nd October, 2004, a file was sent to the DPP. On the 11th April, 2005, the appellant was charged and returned for trial on offences under the Electoral Acts. The appellant pleaded guilty and on the 6th May, 2006, the appellant was convicted of offences under the Electoral Acts. On the 13th July, 2008, the DPP directed that Frank Dunlop be charged with 16 offences of corruption. On the 21st November, 2008, Frank Dunlop was arrested and charged with the offences. On the 16th January, 2009, Frank Dunlop formally pleaded guilty to five charges, being charges 1, 5, 7, 12 and 16 on the Bill of Indictment. On the 26th May, 2009, Frank Dunlop was convicted and sentenced in Dublin Circuit Criminal Court. On the 24th June, 2010, the DPP directed that six persons, including the appellant, be charged with offences of corruption. On the 26th October, 2010, the appellant was arrested and charged. On the 28th October, 2010, the appellant was returned for trial on the charges in issue. On the 10th December, 2010, the appellant and his co-accused appeared in the Circuit Criminal Court. An adjournment was sought to deal with the matters of disclosure and legal aid. The case was adjourned until the 10th February, 2011, with a trial date fixed for the 5th October, 2011. On the 10th February, 2011, the trial date of the 5th October, 2011 was fixed for the appellant and his co-accused. The case was adjourned for mention to the 31st March, 2011. On the 7th March, 2011, the appellant sought leave to apply by way of judicial review, which was granted by the High Court (Peart J.). These proceedings were heard and determined by Hedigan J. on the 28th July, 2011, from which decision the appellant has brought this appeal.

Statements of Frank Dunlop - details
27. Frank Dunlop made a series of statements in which he referred to the appellant.

28. On the 15th October, 2003, Frank Dunlop gave a statement, stating:-

      “I confirm that at the recent sittings of the Flood Tribunal (now the Mahon Tribunal) at Dublin Castle in the course of the “Carrickmines 1 module”, I gave on oath the following evidence in relation to payments made to Liam Cosgrave Esq:-
              (i) IR £2,000 in cash at the time of the 1991 local elections;

              (ii) IR £2,000 cash between the 12th of June, 1992 and the 29th of June, 1992;

              (iii) IR £5,000 cash on the 11th November, 1992;

              (iv) IR £1,000 by cheque dated the 12th of January, 1993, at the time of the 1993 Seanad elections;

              (v) IR £2,000 cash at the time of the 1993 Seanad elections;

              (vi) IR £2,500 by cheque at the time of the Seanad elections of 1997;

              (vii) IR £1,000 cash on or about 16th September, 1997;

              (viii) Cheque in the sum of €1,815 payable to Messrs. Egan Cosgrave Muldowney, 16th September, 1997;

              (ix) IR £2,500 cash on or about 30th October, 1997;

              (x) IR £4,500 cash on or about 23rd December, 1997.”

These payments referred to by Frank Dunlop included payments giving rise to the current corruption charges. The relevant payments being £2,000 in June, 1992; £2,500 on 30th October, 1997; and £4,500 on 23rd December, 1997.

29. On the 20th November, 2003 Frank Dunlop made a further statement, which included the following:-

      “I have known Liam Cosgrave for many years and whilst I came across him in the course of various occupations over the years he was also a friend with whom I socialised on occasion. I was aware of his political career and know that he stood in local, general and senate elections. I am specifically aware that he contested the senate elections in 1997.

      In 1997 I made a number of payments to Mr. Cosgrave detailed as follows:

            (i) Cheque No. 502767 dated 2/7/97 in the sum of IR £2,500; payable to Liam Cosgrave. This was entirely an election expenses contribution. On foot of the said cheque IR £2,500 was debited from my company’s bank account on 7/7/97.

            (ii) On the 16th of September IR £1,000 in cash was given to Liam Cosgrave as an election expenses contribution.

            (iii) Cheque No. 502838 dated 16/9/97 in the sum of IR £1,815 made payable to Messrs. Egan Cosgrave & Assocs was an election expenses contribution payable in that manner at the behest of Liam Cosgrave. On foot of the said cheque IR £1,815 was debited from my company’s bank account on 17/9/97.

            (iv) On the 30th of October 1997 I gave in cash to Liam Cosgrave the sum of IR £2,500 at a meeting in the Davenport Hotel (Dublin). This payment had nothing to do with election expenses or political contributions.

            (v) On the 23rd of December I gave in cash to Liam Cosgrave the sum of IR £4,500 at a meeting in Buswell’s Hotel (Dublin). This payment had nothing to do with election expenses or political contributions.

The said cheques referred to above are identifiable in the relevant statements of account generated by my company’s bank and I attach relevant redacted copies, together with copies of the said cheques.”

Thus, both statements include information relevant to both the earlier and current charges. Both of these statements, and the letter from Frank Dunlop to a manager of AIB Bank of 26th February, 2004, were in the composite statement of evidence of Frank Dunlop in the Book of Evidence on the previous, electoral charges. They are also relevant to the current charges.

30. On the 16th March, 2004, Frank Dunlop made a statement alleging that he made payments to the appellant in return for the appellant voting in favour of rezoning certain lands in Carrickmines. The sums were: a) £2,000 in June 1992, b) £2,500 on the 30th October, 1997, and c) £4,500 on the 23rd December, 1997. Attached to the statement were exhibits. These exhibits are exhibits in the Book of Evidence on the current corruption charges.

31. On the 24th September, 2004, the Garda Síochána had in their possession a further draft statement of Frank Dunlop, which was subsequently signed on the 28th July, 2005.

32. Arising from the Electoral Act charges against the appellant, his solicitors sought disclosure on the 27th April, 2005, of all statements made to the Garda Síochána by Frank Dunlop. While the statements of 15th October, 2003, and the 20th November, 2003, were furnished to the appellant’s solicitors, the statement of the 16th March, 2004, and the draft statement of the 24th September, 2004, were not given to the solicitors for the appellant.

33. The appellant knew of allegations of corruption made against him at the time of the prosecution for the Electoral offences. These allegations were put to him by members of the Criminal Assets Bureau during an interview on the 3rd March, 2004. In the memorandum of the interview the applicant answered three of the questions put to him by the Garda Síochána in the following terms:-

“I have never received a corrupt payment from Frank Dunlop.”

Thus, the appellant was aware of allegations of corruption against him, although he did not know of written statements alleging corruption.

Correspondence
34. Also, there was ongoing correspondence between the solicitors for the appellant and the Criminal Assets Bureau, referred to as “CAB”. For example, on the 8th December, 2004, the solicitors for the appellant wrote to CAB, including the following:-

      “We understand from that conversation that as Chief Bureau Officer you would like to meet personally with the individuals who are alleged to have received money from Frank Dunlop to assist you in forming your own opinion of the evidence gathered during the course of the investigation in relation to the re-zoning of lands in Carrickmines, Co. Dublin.
We would be obliged if you would be able to indicate a sample of the questions you would be seeking to ask our client in relation to this matter. Would our client be cautioned?”

CAB replied on the 14th December, 2004, including the following:-

      “I would not propose that Mr. Cosgrave be cautioned for the interview which I wish to have with him. Broadly, although it is not impossible that the interview might broaden its scope, I would like to focus on ascertaining Mr. Cosgrave’s understanding at the time he received payments, and at the time he took various steps in relation to the rezonings, of why he was receiving payments or taking those steps.”
In a letter dated the 5th April, 2005, in reply the solicitors for the appellant stated, inter alia:-
      “It appears to me that the second paragraph of your letter of the 14th of December 2004 does open the suggestion that Mr. Cosgrave received payments and took various steps on foot of payments in relation to the rezoning of lands in Carrickmines.

      As you are aware Mr. Cosgrave in his interview with D/Sgt. Richardson and D/Garda Harrington on the 3rd of March 2004 indicated that he had never received a corrupt payment from Frank Dunlop.

      However, in any event the Director of Public Prosecutions has directed that charges under the Electoral Act be preferred against Mr. Cosgrave and Mr. Cosgrave is due to be charged in this regard on Monday the 11th of April 2005.

      In those circumstances it is not appropriate for Mr. Cosgrave to meet with you at this time.”

Thus, it is clear that the issue of corrupt payments was under consideration by representatives of the appellant at that time.

Abuse of Process
35. The learned High Court judge considered the issue of an abuse of process from two distinct aspects; (a) the issue of the non-disclosure of statements by the prosecution at the time of the earlier prosecutions; and (b) the legitimate expectation of the appellant. On this appeal counsel for the appellant, in submitting that there had been an abuse of process, stressed that the DPP had all the evidence in 2005 to prosecute the appellant on the corruption charges when the appellant was charged on the Electoral Act offences. Further, that full disclosure was not made of the statements relevant to the corruption charges in 2004. It was submitted that no evidence was adduced to explain why the appellant was not charged with the current corruption charges when he was prosecuted on the Electoral Act charges in 2005. It was submitted that the current prosecution amounts to an abuse of process. Consequently, the fundamental issue before this Court, is whether the prosecution of the current charges, in all the circumstances of the case, including the previous Electoral Act charges, amounts to an abuse of process.

Sequential Trials – General Rule
36. There is a general rule at common law that the Court should stay an indictment when it is satisfied that new charges are grounded on the same facts as charges on a previous indictment on which an accused had been tried and convicted or acquitted.

37. In Reg. v. Elrington (1861) 1 B. & S. 688 the Court considered a second indictment founded on the same facts as an earlier indictment. Cockburn L.J. stated at 696:-

      “The defendants are entitled to our judgment. We cannot deal with hypothetical cases [696] when we are considering what is the law with reference to pleas which have been demurred to. On the facts, as stated here, a complaint for a common assault was preferred before two justices of the peace, who adjudicated upon it. In respect to the very same assault this indictment is now preferred, and to that these pleas are pleaded. The statute is express, and says that, where a complaint for a common assault is made before two justices of the peace, they may either convict the party accused or dismiss the charge, and give him a certificate which shall be a bar to further proceedings. Here they have given such a certificate: and now an indictment is preferred against the same party, charging him, not merely with a common assault, but with two assaults of an aggravated character, arising out of the same transaction. In the cases referred to, of Regina v. Walker (2 Moo & R. 446) and Regina v. Stanton (5 Cox, Cr. Cas. 324), it was held that this statute intended in all cases to make the certificate of the justices a bar to all further proceedings or charges arising out of the same matter. Those decisions are perfectly right. It may be that in some extraordinary cases, of occasional occurrence, the inconvenience pointed out by Mr. Ribton may arise, but in the ordinary administration of the law we must not suppose such an outrageous thing as that justices of the peace would act in the manner he has suggested; and, on the other hand, we must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form. The words of the statute are express, and the present case is brought within [697] it by the pleadings. The defendant, therefore, having received this certificate from the justices before whom the case was heard, may now plead it in bar to this indictment.”
[Emphasis added]

The decision is grounded on the principle that sequential charges may not be brought on the same set of facts. Such a situation does not arise in this case.

38. The general principal was described by Lord Devlin in Connelly v. D.P.P. [1964] AC 1254 at p. 1359 – 1360:-

      “As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may be a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.”
39. There are thus two aspects of the general rule. First, where the second set of charges is founded on the same set of facts as the charges in a previous indictment. This aspect of the rule does not apply to this case as the current set of charges is not founded on the same facts as the Electoral Act charges.

40. This may be seen by contrasting the charges in the current case (which are set out earlier in the judgment) with the indictment of the Electoral Act charges.

41. The indictment of the Electoral Act charges had two counts, as follows:

“Count No. 1


Statement of Offence

Making a False Statutory Declaration, contrary to Sections 25(1)(d) and 25(2)(b) of the Electoral Act, 1997

Particulars of Offence

Liam Cosgrave, on or about the 14th day of January 1998 at Lower Ormond Quay, Dublin 1 in the County of the City of Dublin, at a time when he was a member of Seanad Eireann, knowingly made a statutory declaration before William Egan which was false or misleading in a material respect, namely that he declared that a donation statement, made by him pursuant to Section 24(1)(a) of the Electoral Act, 1997, was, to the best of his knowledge and belief, correct in every material respect and that he took all reasonable action in order to be satisfied as to its accuracy, whereas the said statement was incorrect in that it failed to declare that he had received any single donation exceeding a value of £500, received between the 15th day of May 1997 and the 31st day of December 1997, both dates included, in circumstances where he had received such a donation or donations.”

“Count No. 2



Statement of Offence

Furnishing a False Donation Statement, contrary to Sections 25(1)(d) and 25(2)(b) of the Electoral Act, 1997.


Particulars of Offence

Liam Cosgrave, on or about the 29th day of January 1998 at the Public Offices Commission, 52 St. Stephen’s green, Dublin 2 in the County of the City of Dublin, at a time when he was a member of Seanad Eireann, knowingly furnished a donation statement, pursuant to Section 24(1)(a) of the Electoral Act, 1997, which was false or misleading in a material respect, namely that he failed to declare therein that he had received any single donation exceeding a value of £500, or donations from the same person with an aggregate value exceeding £500, received between the 15th day of May 1997 and the 31st day of December 1997, both dates included, in circumstances where he had received such a donation or donations.”

42. Thus, in the indictment in 2005, the second charge to which the appellant pleaded guilty, alleged that on the 29th January, 1998, when he was a member of Seanad Eireann, the appellant knowingly furnished a donation statement pursuant to s. 24(1)(a) of the Electoral Act, 1997, which was false or misleading, namely that he failed to declare that he had received any single donation exceeding £500, or donations from the same person with an aggregate exceeding £500, between the 1st May, 1997, and the 31st December, 1997. The offence was the failure to make a declaration as to donations received.

43. The Electoral Act, 1997, s. 25(1)(d) creates an offence relating to designated persons, if he or she knowingly furnishes a donation statement or makes a statutory declaration which is false or misleading in any material respect. Donations are defined in s. 22 of the Electoral Act, 1997, and include contributions given for political purposes by designated persons and include money, property, goods, or services, given “for political purposes”. There was evidence in the statements of Frank Dunlop of payments to the appellant. In relation to payments for political purposes that, if not disclosed, would constitute an offence under the Electoral Act, 1997, Frank Dunlop stated that the cheque dated the 2nd July, 1997, in the sum of £2,500, was an election expenses contribution, as were, according to Frank Dunlop, £1,000 given on the 16th September, and £1,815 on the 17th September, 1997. Frank Dunlop’s statement also refers to other payments, which had “nothing to do with election expenses or political contributions”. On that statement, these payments could not fall within the definition that is required to ground the obligation to disclose receipt under the Electoral Act, 1997, and it is these payments that ground corruption charges against the appellant.

44. Ultimately, the Electoral Act case did not proceed to trial and the actual payment of sums was not required to be proved, as the appellant pleaded guilty to the second charge on the indictment. However, it is clear that the current charges are not founded on the same facts as the Electoral Act charges.

45. The second aspect of the general rule arises where the charges form or are part of a series of offences of the same or similar character as the offences charged in the previous indictment. This aspect of the general rule, as described, also does not apply to this appeal as the offences charged on the current charge sheets are not the same or of a similar character as the offences charged on the Electoral Act indictment. The offence of failing to declare on a donation statement that he had received a donation exceeding £500 is neither the same nor of a similar character as a charge that he corruptly received a sum of money as an inducement to or a reward for voting in favour of a specific motion before Dublin City Council or Dun Laoghaire Rathdown County Council. The offences are different in nature, degree and moral turpitude. As the learned High Court judge stated at paragraph 6.5 of his judgment:

      ”there is a considerable difference between failing to disclose a donation on the one hand and corruptly receiving a payment on the other. While the former offence may simply involve inadvertently failing to disclose a bona fide donation the latter offence clearly involves dishonesty and is a much more serious offence as reflected by the more severe penalties provided for in the legislation.”
I agree with the learned High Court judge’s assessment of the differences between the two offences. Consequently, the second aspect of the general rule does not apply either to the appellant’s case. Thus, this general rule at common law does not apply to this appeal.

Broader Principle
46. I approach the case from a broader and more fundamental aspect, and make an analysis as to whether in all the circumstances there was an abuse of process, and if so whether there is a real or serious risk of an unfair trial. This is a principle distinct from the rules in relation to autrefois acquit and autrefois convict.

47. The discretion to guard against an abuse of process lies within the jurisdiction of the court. In Reg v. Beedie QB 356, Rose L.J., giving the judgment of the Court, stated at 361/362:-

      “We turn to Mr. Smith’s second submission in relation to the nature of a judge’s discretion. From the speeches in Connelly v. Director of Public Prosecutions he identified two principles wider than the narrow principle of autrefois. First, that no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts. He relied on the speech of Lord Devlin, at p. 1347, where he referred to the inherent jurisdiction to declare that the prosecution must ‘as a general rule join in the same indictment’ charges founded on the same facts by staying a second indictment if satisfied that its subject matter ought to have been included in the first. A similar passage appears in his speech at p. 1360, where he adds:

        ‘But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.’
Lord Pearce referred, at p. 1364, to the narrow view of autrefois as not comprehending:
        ‘the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal …. the courts should apply to such cases an avowed judicial discretion …’
Lord Reid said, at p. 1296:
        ‘the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer …. there must always be a residual discretion to prevent anything which savours of abuse of process.’”
Thus, while there is a general rule, as described, that a prosecutor should combine in one indictment all the charges he intends to prosecute, and that there should be no sequential trials for offences on an ascending scale of gravity, the Court also retains a discretion to protect the fair trial process against an abuse of process in all the circumstances.

48. While the general rule as to sequential trials, as described in the Connelly case, does not apply to this case, as discussed above, even the general rule has exceptions, and the courts retain a discretion to protect an accused against an abuse of process.

49. Exceptions were outlined in the Law Commission of England and Wales’ report, Double Jeopardy and Prosecution Appeals , where it stated at paragraphs 2.18 and 2.19:-

      “the recent decision of three former judges of the Court of Appeal, sitting as the Court of Appeal for Gibraltar, in Attorney General for Gibraltar v Leoni Criminal Appeal No 4 of 1998, judgment given 19 March 1999; unreported. The defendants were seen jettisoning cargo from their boat on the approach of a police launch. The police suspected that the cargo was cannabis, but could not prove this until the cargo was recovered; and by that time the defendants had already pleaded guilty to an offence of jettisoning cargo. The Court of Appeal held that this was not enough to bring the Connelly principle into play, because the charges of possessing and importing cannabis did not arise out of the same facts as the charges of jettisoning cargo. The court went on to express the view that the recovery of the cannabis, after the defendants had been dealt with on the jettisoning charge, would in any event have amounted to special circumstances. It has long been established that the occurrence of some new event after a conviction for a lesser offence is no bar to a later prosecution for an aggravated offence: for instance, a defendant convicted of an assault can be prosecuted for manslaughter if the victim of the assault dies after the conviction. The court drew an analogy between the occurrence of a new event and the discovery of new evidence.

      This tends to support the view that the discovery of new evidence may amount to a special circumstance for the purposes of the Connelly principle. It is noteworthy that the court took this view although the prosecution had been aware, at the time when the jettisoning charges were dealt with, that evidence of cannabis offences might yet be discovered. The argument for treating the discovery of new evidence as special circumstances must be all the stronger where, at the time of the first trial, the prosecution has no reason to suppose that evidence of another offence might become available.”

The Court of Appeal found that the Connelly general rule was not brought into play by the facts of the case, as I have found in this case, but the Court of Appeal also considered that the additional evidence would have constituted special circumstances to the general rule.

Burden
50. Under the Connelly principles the burden lies upon the respondents to prove that the general rule does not apply, when the facts grounding the general rule have been established. Thus, if the facts in this case came under the Connelly general rule, the burden would lie on the respondents to prove that this case is an exception to the general rule. However, I have approached the case from a wider perspective, and have considered whether the DPP has established that there is good reason for the sequential trials and whether these current charges are an abuse of process. The same facts and arguments that would have established special circumstances, if the Connelly general rule was established, would also have a bearing on the Court’s consideration of whether an abuse of process has been established and in the consequent exercise of discretion.

Discretion
51. On the respondents’ submissions in this case it is submitted that this is an exception to the general rule and that the Court should exercise its discretion in favour of permitting the prosecution to proceed. From whatever aspect one addresses the case, the Court retains a discretion to protect a person against an abuse of process such as to give rise to a real risk of an unfair trial.

Conclusion on the issue of sequential trials
52. It is a general rule at common law that the prosecution should join in the same indictment charges founded on the same, or similar, or substantially the same, facts. However, there are exceptions to this rule. A second trial on the same, or similar, or substantially the same, facts is not necessarily oppressive. There may be particular circumstances which make it appropriate in that case.

53. In this case the current charges are not based on the same facts as the earlier charges. Thus, the first aspect of the rule as described in case law does not apply.

54. Nor does the second aspect of the rule apply as the Electoral Act charges are not of the same or similar character as the current charges of corruption.

55. However, as the prosecution of the Electoral Act charges and the current corruption charges arise out of a series of statements made by Frank Dunlop in 2003 and 2004, I consider that there are circumstances which require to be considered to determine whether the current charges are an abuse of process or are oppressive to the appellant so as to give rise to a real risk of an unfair trial.

56. In analysing whether the current charges are an abuse of process I consider the following to be relevant matters:-

        (i) In all the circumstances of the case the State had a valid reason for not prosecuting the appellant for corruption in 2004. It had justifiable reasons for not calling Frank Dunlop as a witness until Frank Dunlop himself was prosecuted and convicted for corruption offences. In the Electoral Act charges Frank Dunlop was a witness, in the matter of the corruption charges Frank Dunlop was an accused. Thus, both sets of charges could not be dealt with identically. Before the DPP could rely on Frank Dunlop’s evidence in the prosecution of the appellant for corruption charges, the criminal liability of Frank Dunlop under the corruption allegations had to be determined. It was only after Frank Dunlop’s criminal trial had been determined that he could be a prosecution witness in the current charges.

        (ii) There is no duty on the DPP to inform a person of a potential prosecution. Nor is there a duty on the DPP to disclose information to a potential accused which is relevant to a future potential prosecution.

        (iii) The facts upon which the Electoral Act offences and the corruption offences are based are different.

        (iv) The Electoral Act offences and the current charges are different in nature, degree and moral turpitude. As discussed earlier, the failure to declare on a donation statement that he had received a donation exceeding €500 is not the same or of a similar character as a charge that he corruptly received a payment.

        (v) The appellant knew of corruption allegations made against him at the time of the prosecution for the Electoral Act offences. These allegations were put to him by members of the Criminal Assets Bureau during an interview on the 3rd March, 2004. In the memorandum of the interview the applicant answered three of the questions put to him by the Garda Síochána in the following terms:-

              “I never received a corrupt payment from Frank Dunlop.”
        Thus, the appellant was aware of corruption allegations against him, although he did not know of written statements alleging corruption.
57. I am satisfied that it is not an abuse of process to prosecute the appellant on the current charges. In the special circumstances it was just and appropriate for the DPP to await the prosecution and conviction of Frank Dunlop before prosecuting the appellant on the current charges, upon which Frank Dunlop will be a key witness. In all the circumstances there is no real risk of an unfair trial. Thus, I would not prohibit the trial of the appellant on the current charges.

Delay
58. It was submitted on behalf of the appellant that the learned High Court judge erred in misconstruing the argument on delay. It was submitted that the investigating and prosecuting authorities had in their possession all the proposed evidence forming the content of the book of evidence in relation to the current charges when prosecuting the Electoral Act charges, but that the DPP had held off for nearly five years before charging him in the current prosecution.

59. There has been delay in the prosecution of the current charges on corruption. However, the reason for the delay, the fact that the DPP waited until Frank Dunlop was prosecuted and convicted before he brought these charges, grounded on the evidence of Frank Dunlop, is reasonable. Indeed, if this prosecution had been brought prior to the prosecution of Frank Dunlop it would have left the prosecution open to challenge as to the status of Frank Dunlop as a witness. In fact, in this appeal the issue of delay is subsumed in the issue of abuse of process, upon which I have reached a decision as stated previously.

However, it is also a factor, which it is not necessary to weigh in the balance in this case, that it is not the appellant’s interests only which have to be considered. It is necessary to balance the appellant’s right to reasonable expedition in the prosecution of the charges with the community’s right to have the criminal offences prosecuted. In cases such as this, where there are charges of corruption of public officials, there is a very significant public interest in permitting such allegations to proceed to trial.

Stress and Anxiety
60. Clearly there was stress and anxiety in the earlier prosecution, as there would be in the current prosecution. However, on the facts of this case, there is no evidential basis to prohibit the prosecution on this submission.

Legitimate Expectation
61. Insofar as the issue of legitimate expectation was before the Court, it was a submission as to an abuse of process. I would affirm the analysis of the learned High Court judge. For the reasons given previously, I would not allow an appeal on the submissions as to an abuse of process.

Disclosure
62. Insofar as there was a lack of disclosure by the State of the statement of Frank Dunlop to Gardai (CAB) on the 16th March, 2004, and the draft statement of Frank Dunlop of the 24th September, 2004, these statements were not relevant to the prosecution for the Electoral Act charges and did not require to be disclosed in that prosecution. In addition, I am not satisfied, in all the circumstances, and for the reasons discussed earlier, that the non disclosure established an abuse of process such as to ground an order prohibiting the trial of the appellant on the current corruption charges.

63. For the reasons given, I would not prohibit the prosecution of the appellant on the current charges, I would dismiss the appeal and affirm the judgment and order of the High Court.



JUDGMENT of Mr. Justice Hardiman delivered the 26th day of April, 2012.
This is the appeal of the applicant, Mr. Cosgrave, from the judgment of the High Court (Hedigan J.) of the 28th July, 2011, whereby the learned judge refused the reliefs sought by way of judicial review. These were directed at restraining his prosecution on charges of receiving corrupt payments.

The charges and relevant pleadings have been so fully exerted and expounded in the judgment of the learned Chief Justice in this case that it would be otiose to repeat what she says.

Overview.
As a result of legislation passed in 1997 the applicant, as an elected representative and a candidate for office, was required to file a statement of all political donations received by him which exceeded £500. In April 2005 he was charged with two offences contrary to the 1997 Act, of making a donation statement which was false or misleading in that it failed to disclose donations received by him between the 15th May, 1997 and the 31st December, 1997, seven to eight years previously. By agreement with the prosecution, he pleaded guilty to one of the charges and received a sentence of community service in lieu of six months imprisonment. The offence in relation to donation statements is agreed by the parties in the present action to be of a regulatory nature. It seems however that they were merely a curtain-raiser to much more serious charges.

Some 5½ years later, in October 2010, the applicant was again brought before the Courts but charged on this occasion with much more serious offences, that of corruptly receiving certain sums of money, contrary to the Public Bodies Corrupt Practices Act, 1889, twelve to seventeen years previously. There were five such charges. On examining the Statements of Evidence served on the applicant in respect of the 2005 proceedings, it transpires that each of the sums of money alleged to have been corruptly received was set out in the statement of the principal prosecution witness, a Mr. Frank Dunlop as having been given by him to Mr. Cosgrave, in 1992 in one case and in the remaining cases in 1997. It has since transpired that, at the time the 2005 charges were preferred, Mr. Dunlop already had alleged to the gardaí that the five relevant payments were corrupt payments.

Mr. Cosgrave claims that this conduct on the part of the prosecution - bring forward in 2005 a relatively minor count only and then, when a plea to that count had been secured waiting some additional five years for bringing forward, on the basis of the same statements - the much more serious counts which the applicant now faces - offends a long established common law rule which is part of the concept of a “trial in due course of law” which is required by the Constitution. This is based on a requirement, as it was put in a recent Irish case, that “in the interest of justice… defendants are not exposed to successive suits where one would do”. He says that this rule applies to criminal prosecutors as well as civil litigants and has been fragrantly breached in this case.

Salient relevant facts.
I consider that the salient facts relevant to the present proceedings are as follows:
(a) The projected criminal case turns essentially on the statements and allegations of Mr. Frank Dunlop. There would be no case without him. Mr. Dunlop has become extremely well known nationally by reason of his appearances before the Flood Tribunal, before that body was transposed into the Mahon Tribunal. The Tribunal, which was established in 1997, has recently published its final report. Mr. Dunlop was previously well known in various occupations which included those of RTE journalist, employed official of the Fianna Fáil party, Government Press Secretary, and lobbyist. On his own account of events, and in the course of this latter occupation, at various stages in the 1990s he purveyed payments to elected officials, mainly County Councillors, in the Dublin area. Some of these payments, according to Mr. Dunlop, were bona fide political contributions but others (he says) were payments designed to influence the votes of the public officials. The legal status of payments of each kind, insofar as relevant to the present proceedings, will be considered below. Mr. Dunlop’s present narrative is at variance with his own previous statements.

(b) In relation to the applicant, Mr. Dunlop told the gardaí that he was a “friend” of Mr. Cosgrave.

(c) In the course of his evidence at the Flood Tribunal, Mr. Dunlop executed a remarkable volte face.

In the teeth of his own previous evidence he gave evidence that he had made various payments to public officials at different times over a period of about a decade, some as bona fide political contributions and some as corrupt payments i.e. payments designed to influence their decisions on certain planning issues. These payments were often made at or about the time of elections, when the politicians in question had elections expenses. There were local elections in 1991, a general election in 1992, Seanad elections in 1993 and a general election in 1997, with Seanad elections later the same year.

(d) Because of the enactment of the Electoral Act, 1997, members of the Oireachtas, the European Parliament (or candidates at Dáil Seanad and European elections who were not elected) had to notify the Public Office Commission of certain donations received by them. This was to be done by means of a “donation statement”. The Act made it a criminal offence to furnish a donation statement which was false or misleading in any material respect.

(e) On the 11th April, 2005, Mr. Cosgrave was charged with and returned for trial on charges which became Bill No. 430/2005, containing two counts of knowingly making false and misleading donation statements in January 1998 in relation to donations exceeding £500 in value received between May and December of 1997 contrary to s.25 of the Electoral Act, 1997.

(f) To anticipate for a moment, some 5½ years later on the 26th October, 2010 Mr. Cosgrave was again arrested and charged with five offences of receiving corrupt payments from Frank Dunlop, in June 1992 and between the 30th October, 1997 and the 23rd December, 1997 in respect of the zoning of lands at Carrickmines, contrary to s.1 of the Public Bodies Corrupt Practices Act, 1989 as amended.
(g) It is now necessary to go back to the first set of charges, those preferred in 2005. The following crucial features emerge.

There has been no appeal from this finding.
        (ii) Substantially the whole of the evidence against Mr. Cosgrave on both the first and the second set of charges consists of statements and allegations made by Mr. Dunlop to the gardaí. He had previously made similar statements to the Flood Tribunal in October 2000.
        (iii) The corruption charges are of a much more serious nature than the “donation statement” charges. The penalties available, in terms of fine or imprisonment are more than twice as severe. Moreover, it is common case that the “donation statement” charges are capable of being regarded as regulatory offences only whereas the corruption charges are undoubtedly true criminal offences.

        (iv) After the applicant was charged with the “donation statement” offences in 2005 his solicitors sought disclosure from the gardaí of “all statements” made by Mr. Dunlop. Their entitlement to do this has not been challenged, nor has the relevance of the material they sought. But they received partial disclosure only. In substance, they received only statements which, if believed, established simply that Mr. Dunlop had made donations to Mr. Cosgrave which would have required to be disclosed to the Public Offices Commission. However the gardaí withheld the allegations which (if believed) established that certain payments were made for the purpose of influencing Mr.Cosgrave’s vote in his capacity as a County Councillor on certain planning issues, and were therefore corrupt payments.
        (v) On the 17th October, 2005, the applicant, after discussions between his counsel and counsel for the Director of Public Prosecutions, pleaded guilty to a single count which was as follows:
                “For that you the said accused on or about the 29th day of January 1998 at the Public Office Commission, 52 St. Stephen’s Green, Dublin 2, in the Dublin Metropolitan District, at a time when you were a member of Seanad Eireann, knowingly furnished a donation statement pursuant to s.24(1)(a) of the Electoral Act, 1997 which was false or misleading in a material respect, namely that you failed to declare therein that you had received any single donation exceeding a value of £500, or donations from the same person with an aggregate value exceeding £500, received between the 15th day of May 1997 and the 31st day of December, 1997, both dates included, in circumstances where you had received such a donation or donations”.
                (Emphasis added)

            This charge became Count 2 on the indictment and, in an affidavit of Detective Garda Martin Harrington, it is said that “the plea to Count 2 is acceptable to the prosecution in Bill No. 430/2005”.
            The applicant received a sentence of 75 hours of community service in lieu of six months imprisonment.
    (h) It will be noted, from the form of the “donation statement” charge that it does not specify the number or the amount of “any” donation or donations actually received, merely that it or they exceeds £500, alone or in aggregate with others. Nor does it specify the person from whom such donation was received, where it was received or for what purpose it was given. It is capable of covering any number of donations within the stated period. Mr. Dunlop says there were five such donations, four of which are the subject, also, of the later, 2010, charges.

    (i) When the “corruption” charges were brought forth in 2010 they were also in notably vague form. For example, Charge 21 on the “Corruption” charge sheet alleges:
            “For that you the said accused did, on the 30th day of October, 1997 at the Davenport Hotel within the County of the City of Dublin, being an office holder… corruptly received a sum of money as an inducement to or an award for voting in favour of a motion [rezoning the ‘Carrickmines Great’ lands as industrial]”.
            (Emphasis supplied)

        This imprecision in the charges gives rise to certain issues which may be necessary to address later in this judgment. But it does not appear to me to be directly relevant to the substantive legal issue in the case, considered below. But it is of crucial relevance to a vital preliminary issue which is this: were the 2005 charges, and the 2010 charges, based on the same, or substantially the same set of facts?
    (j) In the course of the written and oral submissions of the parties, certain issues were raised which do not appear to me to have been pressed in the end. For example, it was at one time contended that a possible reason for the non-disclosure to Mr. Cosgrave, prior to the first court hearing, of the “corruption” statements made by Mr. Dunlop was that certain of them were still in draft form at that time. This was not in the end pressed as a reason for non-disclosure. Equally a submission that the Rule in the case of Henderson v. Henderson (1843)
    3 Hare 100 had no application to criminal cases was not pursued.

    (k) It is of considerable importance that Mr. Dunlop was the principal witness (“witness No. 1”) in both the 2005 and the 2010 proceedings. Still more important, his Statement of Evidence in the earlier proceedings sets out the exact same alleged payments in regard to which the applicant has now been charged with corruption.

        It is important to be precise about this. On the 2010 charge sheets the allegations of corruption against Mr. Cosgrave are five in number and are set out at charges 20 - 24 inclusive. It is important to note that no amounts are given in the charges so that comparison with the statements made for the purpose of the 2005 proceedings has to be on the basis of dates and (where given) locations alone. Thus, Charge 20 relates to a payment of an unspecified amount but said to have been paid “on a date unknown” between the 12th June, 1992 and the 29th June, 1992. This corresponds precisely to the payment alleged at reference 2 on the first page of Mr. Dunlop’s statement in the 2005 Book of Evidence: a payment of £2,000 cash between the 12th June, 1992 and the 29th June, 1992.

        Charge 21, relates to a payment, again of an unspecified amount (“a sum of money”) but allegedly made on the 30th October, 1997 at the Davenport Hotel. This corresponds exactly with the payment set out at reference 4 on the second page of Mr. Dunlop’s statement for the purpose of the 2005 proceedings.

        Charge 22 relates to a payment, of an unspecified amount made on the same date in the same place. The difference between this and the preceding charge is that this charge relates to the rezoning of 88 acres at Carrickmines Great whereas the former charge relates to the rezoning of 36.85 acres in the same townland. It appears that this is one and the same transaction and corresponds to that described in the 2000 statement at reference 4 on the second page as a payment of £2,500 cash on the 30th October, 1997 in the Davenport Hotel.

        Charge 23 relates to a payment, of an unspecified amount, but paid on the 23rd December, 1997 at Buswells Hotel. This corresponds precisely to the payment described at reference 5 on the second page of Mr. Dunlop’s statement in the 2005 Book of Evidence. This describes a payment of £4,500 cash “at a meeting in Buswells Hotel” on the 23rd December, 1997.

        Finally, Charge 24 again relates to a payment of an unspecified amount on the 23rd December in Buswells Hotel. This charge is distinguished from Charge 23 in the same way as Charge 22 is distinguished from 21.

        Accordingly, as far as the Statement of Evidence in the 2005 proceedings is concerned, it shows a 100% overlap between the payments alleged, in the 2010 charges, to be corrupt payments and the payments described in Mr. Dunlop’s statement in the Book of Evidence for the 2005 proceedings. If, instead of comparing the Statement of Evidence in the 2005 proceedings with the charges in the 2010 proceedings, one compares the earlier and the later charges, an almost equally striking situation results.
    (l) Although (as seen above) the “donation statement” charges were extremely vaguely phrased it is apparent that the evidence relied upon to prove receipt of a donation (which should have been included in the donation statement) was that of Mr. Dunlop, who was witness No. 1 on that Book of Evidence, and his Statement of Evidence of 2005 (being a composite of earlier statements) listed the payments alleged in 2010 to be corrupt payments.

    (m) The charges in the present (2010) Book of Evidence against Mr. Cosgrave are set out at reference nos. 20 - 24 (inclusive) in the Book of Evidence. The first of these alleges a receipt of money “on a date unknown” but said to be between the 12th and 29th June, 1992. The other four charges relate to counts of receiving money corruptly on four dates between the 30th October, 1997 and the 23rd December, 1997. It has been observed that all of these dates are within the dates on which monies which should have been, but which were not, included in the donation statement were alleged to have been received. It is not possible to work out the precise degree of overlap from the charges alone because of the vague way in which they are phrased. But the allegation of receipt of money in 1992 clearly does not overlap specifically with the 2005 charges because the count to which Mr. Cosgrave pleaded guilty relates entirely to 1997.

    The 2005 Charges.
    (n) The 2005 indictment does not specify any payment at all. The charge was furnishing a false declaration which was alleged to be false because it did not declare any specific donation at all received between May and December, 1997, nor did it say how many donations are alleged. But this period is also capable of capturing both payments of £2,500 and indeed the other three payments specified in Mr. Dunlop’s statement of the 20th November. It appears from count 2 of the 2005 indictment that the prosecution was making the case that all of the payments mentioned in Mr. Dunlop’s statement ought to have been disclosed so that the declaration was false if any one of them was proved.

    It thus appears that the prosecution deliberately drafted the 2005 indictment so widely that it is capable of extending to all but one of the payments now alleged to be corrupt payments. If this is so then it appears that the two prosecutions do indeed arise out of the same, or substantially the same, set of facts. To be precise, there is a 100% overlap between the 2005 statement of Frank Dunlop and the 2010 charges relating to payments alleged to be corrupt. If, instead of making that comparison, one compares the 2005 charges with the 2010 charges it appears that four out of the five payments alleged in 2010 are within the terms of count 2 on the 2005 indictment, an overlap of 80%. The legal relevance of this will be considered below.

    Summary.
    It thus appears that in 2004 the gardaí were in possession of statements from Frank Dunlop which are the basis both of the charges they brought against Mr. Cosgrave in 2005 and of the charges they did not bring against him until 2010. Moreover, they failed to disclose the material grounding 2010 charges when asked for “all” statements of Mr. Dunlop, before Mr. Cosgrave pleaded guilty to one of the 2005 charges. The 2010 charges are of an altogether more serious nature both in terms of penalty and in terms of reputational damage, than the 2005 charges were. The applicant says that he was in effect finessed into pleading guilty, in 2005, to an offence of a regulatory nature but one which, nonetheless, necessarily implied that he had received relevant donations from Mr. Dunlop in the latter part of 1997. He is thus severely constrained in the defences available to the present charges.

    It will be manifest from the foregoing that the engine of each set of charges against the applicant is the evidence of Mr. Dunlop and that that gentleman’s credibility would be the central issue at any trial.

    Mr. Cosgrave denies, and has always denied, receiving any corrupt payments.

    Legal aspects of the foregoing.
    The applicant says that there is a well established rule of common law that there should be no sequential trials for offences on an ascending scale of gravity. He says that, as a corollary of this, there is a rule of common law that a prosecutor must “… as a general rule join in the same indictment charges founded on the same facts” and that a court should stay a second indictment “if satisfied that its subject matter ought to have been included in the first”. These matters, he says, are aspects of the trial “in due course of law” which is the only form of trial permitted under the Constitution.

    The applicant says that these propositions arise from a more fundamental rule, which applies both to civil and to criminal litigation, that no party is allowed to bring two actions where one would do, or to divide up a complaint so that different parts of it can be brought forward incrementally at different times (five years later, in this case). It follows from this, of course, that it would be quite wrong to prefer, on the basis of the same statements of the complainant, relatively minor charges to which a defendant might be advised to plead guilty, for the purpose of, or with the result of, permitting much more serious charges to be brought forward half a decade later, when, by reason of his original plea, the defendant would be less well able to meet them.

    The applicant relies in this regard on the venerable case of
    R.v. Elrington (1861) 1B and S at p.70, where the principal judgment was given by Cockburn C.J. There, the two defendants had been charged with common assault before two Justices of the Peace. They were acquitted. The prosecutor next charged them, in respect of the same incident, with assault occasioning actual bodily harm and assault occasioning grievous bodily harm which were much more serious offences, triable on Indictment. The prisoners moved to stay the Indictment preferred against them and were upheld in this by Cockburn C.J. and Blackburn J. Cockburn C.J. said:
            “On the facts, as stated here, a complaint for a common assault was preferred before two Justices of the Peace who adjudicated upon it. In respect to this very same assault this indictment is now preferred, and to that these pleas are pleaded…. we must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred and, whether a party charged of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form”.
    (Emphasis supplied)

    A number of other cases to the same effect are cited in the judgments.

    This case, of course, is one of some antiquity, but this merely suggests that “well established principle of our criminal law” referred to is a very long established one.

    The case was approved in the neighbouring jurisdiction in much more recent times in the case of R. v. Beedie [1998] QB 356, in the Court of Appeal in England. The facts of this case are very instructive. The defendant was a landlord of a rental property in which a young woman tenant died of carbon monoxide poisoning caused by a defective gas fire. He was prosecuted before the magistrates by the Health and Safety Executive and pleaded guilty to an offence under the Health and Safety at Work Act, 1974 consisting of a breach of a duty to ensure that the appliance was maintained and repaired. He was fined. Subsequently there was an inquest into the young lady’s death and the coroner required the defendant to give evidence saying that he could not possibly be prejudiced by answering questions tending to incriminate him because he had already been convicted. A verdict of unlawful killing was returned. Some months later, the Crown Prosecution Service charged him with manslaughter. He moved to stay the Indictment, which was the proper procedure in the United Kingdom. The trial judge ruled against him but the defendant was successful in his appeal to the Court of Appeal.

    In those circumstances, the defendant relied on what he said was a general principle “that no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts” and that to do so would offend the established principle that a defendant is not to be tried again on the same facts for more serious offences on an ascending scale of gravity.

    A second general principle which the defendant in the English case identified was that there “should be no sequential trials for offences on an ascending scale of gravity”. He relied on the judgment in Elrington, cited above. He pointed out that the dictum of Chief Justice Cockburn had previously been approved in Connelly v. Director of Public Prosecutions [1964] AC 1254.

    It appears from the report (p. 362, para. E) that the prosecution in the Beedie case accepted that the Elrington principle is good law.

    The Beedie case is also authority for the proposition that, despite the general rule, there may be circumstances in which charges founded on the same or similar facts need not be joined in the same indictment; this required proof of special circumstances, the proof of which lay on the prosecution. The judgment referred to a case of R.v. Riebold [1967] 1 WLR 647 where it was held that there were no “special circumstances” because there were no new facts which had emerged between the first and the second set of charges. The learned trial judge’s finding that this is the situation in the present case as well has been quoted above. The Court of Appeal said (page 366):
            “In our judgment there being, as we have indicated, no special circumstances in the present case, it is one where the general rule should have prevailed. A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions and gave rise to a prosecution for an offence of greater gravity, no new facts having occurred, in breach of the principle of R. v. Elrington”.

    Importantly, Lord Devlin in Connelly, declared that a prosecutor must: “… as a general rule join in the same Indictment charges founded on the same facts” and that a court should stay a second Indictment “if satisfied that its subject matter ought to have been included in the first”. It is this statement, rather than the mere broadly-framed one which gives rise to it, upon which the appellant relies.

    Lord Pearce held, in the same case, that the defence of autrefois acquit did not comprehend:
            “… the whole of the power on which the Court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal… the Court should apply to such cases an avowed judicial discretion”.

    Equally, Lord Reid said that:
            “… the general rule must be that a prosecutor should combine in one indictment all of the charges which he intends to prefer… there must always be a residual discretion to prevent anything which savours of abuse of process”.

    Ratio of the above principle.
    There is, of course, a rule to the same effect as that quoted above in relation to criminal prosecutions, which developed in relation to civil proceedings. As it happens, the rationale of this rule is perhaps better expressed in the civil cases. There is no doubt that this rule, often referred to as the Rule in Henderson v. Henderson is both a common law principle of considerable antiquity and one which has been frequently applied and often examined in recent times in this jurisdiction.

    The rule in Henderson v. Henderson [1843] 3 Hare 100 means that a litigant may not make a case in legal proceedings, which might have been, but was not, brought forward in previous litigation. The rule was thus characterised in SM v. Ireland [2007] 3 IR 238 by Kearns P. and he cited the Victorian case as follows, from the judgment of Vice-Chancellor Wigram:
            “… I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and of the judication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject matter of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

    The appellant complains that, in this case, the prosecution quite deliberately did not bring forward their whole case in 2005, and that there was no good reason for this, simply a desire to pursue tactical advantage.

    The applicant in the present cases relies on this principle, and says that it applies to criminal cases also. He cites the case of McFarlane v. D.P.P. [1008 4 IR 2117] and quotes from the judgment of Fennelly J. therein as follows:
            “The purpose of the rule is to uphold an important principle of public policy which demands, in the interest of justice, that the defendants are not exposed to successive suits where one would do”.

    I agree with this dictum and I believe that it applies to civil as well as criminal cases. There is no reason of policy or otherwise why it should not. The degree of distress and harassment caused to an individual who was subjected to multiple litigation in criminal cases is, to say the least, not less than that suffered by a person similarly treated in civil proceedings.

    Fennelly J. cited the English case of Woodhouse v. Consigna [2002] 1 WLR 25 58 where Brooke L.J. characterised the public interest requirement as follows, at p. 2575:
            “… at least as important as the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson that, in the absence of special circumstances, parties should bring their whole case before the Court so that all aspect of it may be decided (subject to appeal) once and for all is a rule of public policy based on the desirability in the general interest as well as that of the parties themselves, that litigation should not drag on forever, and that a defendant should not be oppressed by successive suits where one would do”.

    The case of AA v. the Medical Council [2003] 4 IR 302 is a recent Irish case where the rule was applied. The applicant in that case, who was a medical practitioner not registered in Ireland, was acquitted of charges of sexual assault in the Circuit Court and later sought temporary registration as a medical practitioner in Ireland. The Medical Council held however that there was a prima facie case for holding an inquiry into his conduct arising out of the incidents which led to criminal charges. The applicant then unsuccessfully sought to restrain the inquiry on the ground of double jeopardy. This took a considerable time. A new date was fixed for holding the inquiry. The applicant then commenced a separate set of proceedings also aimed at restraining the holding of the inquiry, this time on the ground that the Medical Council had failed to provide him with legal aid. This Court held, on the basis of Henderson, that a party to previous litigation as against the other party in a second action was bound not only be any defences which it raised in the first action but also by any defence which it might have raised but did not raise. Speaking of the points (in relation to legal aid) sought to be raised in the second proceedings, I said:
            “No reason has been advanced, and none appears on the evidence, as to why these points could not have been raised two years previously. The applicant’s financial position had not worsened in the interval, he was impecunious at all material times. He had first raised the question of legal aid less than a month before the institution of the present proceedings, and no reason has been advance for not raising it earlier. The information he received in reply… cannot have come as a surprise to any lawyer or doctor and no case has been made to the contrary. The issues in relation to legal aid are, therefore, to adapt the language of Henderson and Henderson, issues ‘which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time’ of the first proceedings. In the language of Johnson v. Gore Wood and Company [2002] 2 AC 1, they are issues which might ‘sensibly’ have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy ‘based on the desirability, in the general interests as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits where one would do’.”

    This case was followed in Arklow Holidays Ltd. v. An Bord Pleanála [2007] IEHC 327. There, Mr. Justice Clarke in the High Court considered the application of the rule to public law litigation in the context of judicial review proceedings. He found that there was no reason why the rule in Henderson should not apply with at least equal force in the exercise by public or quasi public bodies of a public law role:
            “As a matter of domestic law there does not, therefore, it seems to me, appear to be any reason why the rule in Henderson v. Henderson should not apply with at least equal force in relation to judicial review proceedings. Such proceedings involve the exercise of public or quasi public bodies of a public law role. There were almost invariably be similar considerations to those identified by Hardiman J., in respect of the Medical Council, which mandate that that public role be carried out in an expeditious way in the interest of the public generally and those persons whose rights and obligations may fall to be governed by the public body concerned. It seems to me that the principles apply with equal force, if not greater, in relation to the planning process.”

    Accordingly, the existence and authority of the Henderson rule in modern Irish law is beyond doubt. Indeed, it has even been relied upon by the Director of Public Prosecutions himself in judicial review proceedings. It is of historical interest to note that a variant of the rule was devised and applied in the pre-independence Irish courts, without citation of Henderson v. Henderson: see Cox v. Dublin City Distillery (No. 2) [1915] 1 IR345.

    Exceptions.
    It is perfectly clear from the cases cited that a moving party, whether plaintiff or prosecutor, must bring forth in the first piece of litigation all the complaints he intends to raise. But this is not intended to be an overly rigid rule or one which applies without exceptions. In Connelly v. D.P.P. that rule is described as “the general rule” and there is also reference to the fact that there “may in a particular case be special circumstances which make it just and convenient in that case” [that a second Indictment be permitted].

    In the present case however no evidence has been brought forward to explain why the applicant was not charged with corruption charges when he was prosecuted in 2005. Hearsay statements and legal submissions have been addressed to this point, considered below. This omission appears to rule out the application of any exception to the general rule. Moreover, it is clear from a citation from the learned trial judge’s judgment given above that it has been affirmatively found that the prosecutors were in possession of all the evidence relied on in support of the charges in the 2010 Indictment at the time the applicant was prosecuted in 2005. Specifically, in Mr. Dunlop’s statement to the gardaí of the 15th October, 2003, it is alleged that he had made ten payments to the applicant between 1992 and 1997. These payments include all the payments giving rise to the current charges of corruptly receiving payments (including the payment of £2,500 cash said to have been made on the 30th October, 1997) other than the 1992 allegation. But the £2,500 appears to be the very payment to which the sample count on the first Indictment related in the mind of the prosecution. It also appears to be a payment in respect of which Detective Garda Harrington has sworn, in his affidavit of the 2nd May, 2011, that it was NOT a corrupt payment. To this extent, and especially if this averment may be taken as relying to the other allegations of which this was a sample, there is an apparent factual inconsistency between the first and the second Indictments.

    I have already commented, at para. (n) above, on the fact that the charge to which Mr. Cosgrave pleaded guilty in 2005 was so vaguely drawn as to be capable of including four of the five payments in respect of which he is now charged with corruption. The prosecution in effect invite us to infer that the payment they had in mind as falsifying the “donation statement” was a payment in July of 1997 and not any of the later payments. I am not prepared to draw that inference. Firstly, I do not believe that the facts grounding the 2005 charge is a matter which should be determined by inference, as opposed to by a consideration of the wording of the charge itself. The prosecution have the sole power to formulate the charge and if they have drawn one so vaguely as to be capable of including four of the five payments alleged in the 2010 charges to be corrupt payments, that is entirely their responsibility. Secondly, all of the 1997 payments now alleged to be corrupt were recited in Mr. Dunlop’s statement for the purpose of the 2005 prosecution, and that fact is manifestly inconsistent with the proposition that count 2 on the 2005 indictment related solely to a payment in July and not to the other payments allegedly made in the time period which the prosecution elected to specify. Moreover, the evidence of those payments was included in the 2005 Statement of Evidence and that, as I have said before, is sufficient to establish the proposition that the two prosecutions are grounded on substantially the same facts. Thus, for example, the payments (now alleged to be corrupt), which were made in the Davenport Hotel and in Buswell’s Hotel respectively in October and December, 1997 were within the evidence adduced to support the 2005 charges. The represent four of the five grounds of complaint in the present indictment.

    The Respondents’ case.
    The respondents’ case on this aspect has varied somewhat as between that made in the High Court and in this Court. In the written submissions before the High Court it is baldly stated, at para. 18:
            “It is further submitted that the Henderson v. Henderson principle applies to civil law and has nothing to do with the pleas in Bar that exist in criminal law”.

    This contention is considerably nuanced in the submissions on appeal as follows:
            “Traditionally Henderson v. Henderson has applied to civil law only and in this jurisdiction has not been applied in criminal cases…”.
    In the following paragraph, however, the point is nuanced still more:
            “… even if one were to apply the rule in Henderson v. Henderson its application is:

            (i) Dependent on the question as to whether all of the issues it is sought to litigate in the second case could have been included as part of the first case;
            and
            (ii) Is subject to a special circumstance exception”.
    (Emphasis added)

    In practise, the bulk of the submissions were directed at the first of the points just mentioned. Detective Garda Harrington in his affidavit states, at para. 132:
            “… it’s simply not the case that the within prosecution could have been brought at the same time as the Electoral Acts prosecution”.

    Having recited this, the respondents put their case as follows:
            “As we know at the time the Electoral Acts charges were directed Mr. Frank Dunlop had not made any signed statements suggesting that any of the payments were corrupt. Even when he made such statements, as he was criminally liable himself, he had to be brought before the courts and dealt with. Thus this was never a case where the corruption charges could have been brought before the Courts in 2005/2006 at which time the Electoral Acts charges were before the court. It is submitted that this disposes of any argument based on Henderson and Henderson.”

    That, indeed, is the whole of the respondents’ case on this point. The case thus made appears to me to be fatally undermined by the fact that Mr. Frank Dunlop was the first and principal witness in the 2005 Book of Evidence. He was required as a witness to prove the payments allegedly made to Mr. Cosgrave. But he had, prior to Mr. Cosgrave being charged with the Electoral Act offences, made a statement to gardaí in which he alleged and admitted that he had himself made corrupt payments to Mr. Cosgrave. Accordingly, in the respondents’ phrase “he was criminally liable himself”. But the D.P.P. did not then take the view that before he could be called as a witness he had first to be brought before the Courts and dealt with. This did not occur until 2009. The State thus made use of him as a witness in 2005 even though he had not been brought before the Courts and dealt with. Therefore they could have used him as a witness in 2005 in a corruption charge.

    I do not accept the prosecution contention that there is a valid distinction between the 2005 charges and the 2010 charges because, on Mr. Dunlop’s account, he was an accomplice to the offences charged in 2010 but not to the offences charged in 2005. I must reiterate what seems to me to be the central fact, that the prosecution were in possession of Mr. Dunlop’s statement portraying himself as an accomplice in the corruption charges eventually brought forth in 2010, before the 2005 case. Yet, despite the fact that, as the prosecution put it, “he was criminally liable himself”, he was not merely deployed as a witness but his statement of proposed evidence included the very payments in respect of which he had admitted accomplice status. It has not been submitted that there was any rule of law whereby an accomplice could not be deployed as witness unless he had first been charged himself. Therefore, the decision to defer the bringing of charges until Mr. Dunlop had been charged and convicted was a tactical one and nothing more.

    My reasoning on this point requires a relatively detailed analysis of the law relating to accomplices. Since this tends to break the continuity of the judgment, I have relegated it to an appendix below.
      Moreover, the inclusion of the payments relied on in 2010 in Mr. Dunlop’s 2005 Statement of proposed Evidence manifestly demonstrates the prosecution’s willingness to rely on them in the 2005 case for some purpose, whether in aggravation of sentence or otherwise.

      Accordingly, I cannot accept the proposition that corruption charges were not capable of being preferred in 2005 because Mr. Dunlop had not then himself been prosecuted. No legal authority is cited for this proposition. Detective Garda Harrington’s affidavit, however, at para. 92 says that the D.P.P. told the gardaí that he would only consider prosecuting James Kennedy and the other councillors if Frank Dunlop was convicted of the related charge and then only upon receipt of confirmation that Frank Dunlop would be prepared to give evidence in the Criminal Court in any prosecution that the D.P.P. might consider bringing against James Kennedy and the councillors.

      This of course is hearsay and the unfairness (quite apart from admissibility issues) of including hearsay in an affidavit is that it is impossible to challenge by cross-examination. But, altogether apart even from this, the material in question is no more than a statement of the view of the then Director of Public Prosecutions. It does not explain why, if that was indeed his view at the relevant time, he authorised a prosecution for offences under the Electoral Acts with Mr. Dunlop as a witness, indeed the principal witness, and in whose Statement of Evidence the payments to which the present changes relate were rehearsed.

      Another point forcibly made by the respondents is that although the State were, prior to the initiation of the 2005 prosecution, in possession of a statement of Mr. Dunlop alleging that he had made corrupt payments to various persons, including the applicant, this was an unsigned statement and did not exist in signed form until after the 2005 prosecution had concluded. This cannot in any way affect the rule that “a prosecutor should combine in one indictment all of the charges which he intends to prefer”. It was not, in the end, submitted that it could.

      There is no doubt that the prosecution did not provide, by way of disclosure in the 2005 case, those statements of Mr. Dunlop alleging corrupt payments. This fact, however, does not appear to me to be in itself directly relevant to the present point. But it is of course the case that, had the applicant’s solicitors been aware of the statements alleging corruption, they would have been alerted to a manifest risk to their client which they might have sought to address in the discussions which preceded the plea to one count on the 2005 indictment.

      Detective Garda Harrington sets out a good deal of material in his affidavit suggesting that the substance of Mr. Dunlop’s undisclosed statements had been put to Mr. Cosgrave in interviews, and no doubt this is perfectly true. But it is one thing for a garda to canvass a topic in interviews with a suspect, perhaps in the hope of an admission. But that does not suggest either that the prosecutor is in possession of evidence to support a particular allegation or that a witness has made a statement about it. The allegation about corrupt payments was put to Mr. Cosgrave, and he denied it. Subsequently, he was charged with offences which made no reference to corruption, and not until more than five years later did a corruption charge come forth.

      In fairness to the prosecutors, it should be said that no undue emphasis was placed in the end on the fact that Mr. Dunlop’s 2004 statement alleging corruption was unsigned. At para. 18 of their written submissions, the respondents say:
              “The D.P.P. accepts that the fact that a statement is in draft form does not make what would otherwise be a disclosable statement non-disclosable. However it is submitted that the focus of this appeal is not on the scope of disclosure in criminal cases.”

      I agree with what has been quoted above and indeed consider the defective disclosure in the 2005 case as logically tangential, if suggestive, in its relevance to the nub of the present case. It is not without significance, in considering the facts, that the material making it clear that Mr. Dunlop was alleging an offence contrary to the Act of 1889 was not disclosed to Mr. Dunlop’s advisers even though it was in the possession of the prosecution. The disclosure material must have been carefully edited to exclude it. If, as the submission quoted above appears to accept, the fact that it was in unsigned form is not a central point, then it is hard to know why it was not disclosed. If it had been disclosed the subsequent development of the case against Mr. Cosgrave might have been very different. Mr. Cosgrave might have been advised that the charges which he faced in 2005 were merely a curtain raiser to much more serious charges in whose defence he would be severely prejudiced if he pleaded guilty to one of the 2005 charges.

      It is clear from the affidavit of Mr. Robert Eager, Solicitor, in the present case that Mr. Cosgrave was meticulously and more than competently advised by solicitors well known for their expertise in criminal law, and by counsel retained by them. Such advisers would be fully aware of the distinction between a particular allegation being canvassed by a guard in an interview on the one hand, and that guard having an intention, based on the availability of evidence, to pursue such an allegation to the point of prosecution on the other. It was manifestly in full knowledge of that distinction that the solicitors very advisedly wrote seeking all the statements of Mr. Dunlop. The letter in response, which is that of the 17th June, 2005, does not suggest that the solicitors are not entitled to “copies of all statements made to the gardaí by Mr. Frank Dunlop” but includes the “donation statements” only. It was not stated or apparent that there were in being other statements which were being withheld.

      By contrast, when the statement of Mr. Dunlop contained in the Book of Evidence in the 2010 case came to hand, it appears that this statement was a composite of two statements made by Mr. Dunlop before the 2005 case, being firstly a witness statement of Frank Dunlop of the 16th March, 2004 made to Detective Inspector Denis O’Leary and Detective Garda Martin Harrington and secondly a witness statement of Frank Dunlop made on the 28th July, 2005 made to Inspector O’Leary and Detective Sergeant Richardson.

      It is thus apparent that these statements were available before Mr. Cosgrave pleaded guilty to the 2005 charge in October of that year, but that neither of them was disclosed to the applicant.

      As we have seen above, the substantial reason given for this is that it was not possible then to proceed with the corruption charges because Mr. Dunlop himself had not been dealt with by the Courts. As I have said, I reject this as being plainly not the actual reason for the non-disclosure, or for the failure to bring forward corruption charges in 2005. This is clearly so because Mr. Dunlop was in fact deployed as the principal prosecution witness in the 2005 charges, and this was done on the direction of the same holder of the Office of Director or Public Prosecutions.
      It is not necessary for present purposes to say more than this: no credible particular or special reason has been advanced by the State as to why the general rule applying to all proceedings, outlined above, was not complied with in the present case. The 2005 case has turned out to be merely a curtain raiser for a much more serious one brought forward more than five years later. I believe that this was the intention of the prosecution at the time the first charges were preferred. The careful non-disclosure of Mr. Dunlop’s corruption allegation was, I believe, unfair to Mr. Cosgrave and was seen as an important feature in procuring the plea to a single count in 2005. It seems to me manifest that the editing of Mr. Dunlop’s statements prior to the plea of guilty was not done in Mr. Cosgrave’s interest, to say the least. Cui bono?

      The effect of the non-preferring of corruption charges in 2005, combined with Mr. Cosgrave’s plea to the single count in that year is significantly to worsen his position in relation to the corruption charges he now faces. It must have been manifest to any lawyer in possession of the material which the prosecution redacted in 2005 that this would be so.

      I further believe that the contents of the single count in respect of which the guilty plea was recorded in 2005, and the statement of Mr. Dunlop in the Book of Evidence served in that year, amply demonstrate that the 2005 and the 2010 charges are based on the same, or substantially the same, facts. They should therefore have been charged in the same indictment, some seven years ago.

      Two further points.
      I wish briefly to make two further points, both arising out of the penetrating judgment of O’Donnell J. in this matter.

      Firstly, para. 17 of his judgment, O’Donnell J. raises the possibility that the observations of Detective Garda Harrington as to what he was told by or on behalf of the Director of Public Prosecutions may not be hearsay. Since, like O’Donnell J., I have not decided the case, wholly or partly, on this issue, I am reluctant to write extensively on a point that is not central. But I can quite see the argument for thinking that the direction of the D.P.P. to the gardaí, if the latter are regarded as his agents, may not be hearsay. But I consider that, even if this is so, the reasons given by him, as retailed by Detective Garda Harrington, are indeed in the nature of the hearsay. This is not a mere technical point: by putting these matters before the Court in the affidavit of a person who cannot effectively be cross-examined on them, the applicant is placed at a considerable disadvantage. I would simply stress that, in the future, material of this sort should be provided by a witness who can speak of it from his own knowledge, so that the evidence can be challenged by cross-examination if desired. Precisely the same observation, of course, would apply to the affidavit evidence of an applicant.

      Secondly, I want to express my agreement with what is said at para.18 of the judgment of O’Donnell J. to the effect that the bringing forth of the corruption charges so long after the first set of charges means that they come “at a time when he [the applicant], and anyone connected with him, would have been entitled to believe that at least as far as the criminal law was concerned, he could attempt to the task of rebuilding his life”. I agree with this. The late preferring of the corruption charges, after Mr. Cosgrave has undergone not merely a trial but a ritual humiliation quite a number of years ago is a nonsense from a penological point of view. It is also, I believe, seriously oppressive of the applicant and his family. The avoidance of such an oppression is one of the main reasons for the rule that, in the absence of a special reason, all charges against a person should be brought forth at the same time. I do not consider that the procedures adopted in this case have been just to Mr. Cosgrave or to those connected with him, i.e. his family. I am not aware of any case where original charges have been followed at so long an interval with much more serious ones and I do not see why Mr. Cosgrave has been singled out in this respect.
      For these reasons I would set aside the order of the High Court and substitute an order prohibiting the further prosecution of Mr. Cosgrave on the 2010 charges.

















      Appendix
      Legal status of an Accomplice.
      The term “accomplice” is derived from substantive criminal law and, in that context, denotes a person who is chargeable either as principal or accessory, with the principal offender. English authority in the main has stuck closely to this definition and in a leading case of Davies v. Director of Public Prosecutions [1954] AC 378, it is said that a person who is particeps criminis in respect of the offence charged is a classic accomplice.

      There is no doubt that a person of this sort is indeed an accomplice. But Irish authority has over a long period of time taken a broader view of who else is included in that category at least for the purpose of attracting a corroboration warning. Thus in A.G. v. Linehan [1929] IR 19 Kennedy C.J. said:
              “We do not think that in the case of a rule of caution concerned with the credit of accomplice witnesses and the weight of their uncorroborated evidence, a narrow or precise definition of ‘accomplice’ should be or indeed can be laid down”.

      This echoed criticism of what was seen as an unduly strict English rule in other jurisdictions, on the basis that it focussed on the liability of the witness to prosecution for the very offence with which the accused is charged. This seems unduly narrow and seeks to apply a concept which evolved to deal with the question of culpability to the very different problem of credibility. See The Accomplice Corroboration Warning by Declan McGrath (1999) Ir. Jur. 170. .

      This article identifies the best known of the common law judgments which advocate a broader and more purposive approach to the definition of an accomplice as McNee v. Kay [1952] VLR 520. There, Sholl J. preferred the view that:
              “[A person] who is chargeable, in relation to the same events as those founding the charge against the accused with an offence (whether the same offence or not)…”.
      was an accomplice.


      As it happens, McNee v. Kay is a judgment particularly interesting to an Irish lawyer. It adopts the “penetrating comments” of Joy C.B. of the Old Court of Exchequer in Ireland, made in his 1844 treatise, Evidence of Accomplices. Indeed, I do not know if I would endorse that work so completely. Sholl J. points out that Joy’s work is cited by the great American authority on Evidence, Wigmore, and goes on to observe:
              “In Victoria, by virtue, I have ventured to think, of the retention of some at least of that good sense which informed the comments of Joy C.B., and by virtue also, perhaps, of the fact that the early practice, procedure, and traditions of the Courts of this State were much influenced by Irish lawyers who came to the colony, we have declined to go so far.” [So far, that is, as the English Courts have].
        In the present case, Mr. Dunlop is undoubtedly an accomplice, even in the most narrowly technical sense, in relation to part of what he describes in his statements to the gardaí in 2004 and 2005, and indeed earlier. The question that emerges is as to whether the prosecution are entitled to edit out of these statements the material which renders him a self proclaimed accomplice and therefore to proceed on the basis that he is not an accomplice at all, to certain offences, here the Electoral Act offences.

        Accomplice status.
        To say that a witness’s statements which, if read in their entirety, plainly render the witness a self proclaimed accomplice, may be edited in such a way so as to exclude this aspect and permit the prosecution to proceed to trial on other charges, without communicating the witness’s declaration that he is an accomplice, seems to me to ignore the legal consequence of accomplice status and the rationale for it.

        If Mr. Dunlop was seen as an accomplice a Judge at any trial in which he was proffered as a prosecution witness would have to give the jury a “corroboration warning”. In Dental Board v. O’Callaghan [1969] IR 181, Butler J. distinguished firmly between a requirement for a corroboration warning and a mandatory requirement for corroboration itself. He said;
                “The rule is that that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it be corroborated…”.

        This statement indeed is supported by passages in all of the leading Irish text books on Evidence, many of which also attempt to state the rationale behind the rule. Reference may be made to Fennell, at para. 6.24; Cannon and Nelligan at para. 9.3.1; Heffernan, at p.254 where a witness of this sort is described as “both self interested and infamous”; Healy, at para. 5.21 and McGrath at para. 4.18.

        Rationale for the Rule.
        A number of different rationales for the rule just cited from the often approved dictum of Butler J. are offered, and most of them arise from commonsense. An accomplice who is giving evidence for the prosecution is, by that very fact, a person of compromised character and a person, it may very well be, who has a material reason of self interest for behaving as he does in giving evidence against an alleged confederate.

        In Mr. McGrath’s text book in particular the rule is traced to its Irish historical origins, in the early 19th century, when it was a rule of practice only, though it has since come to approximate to a rule of law.

        In R. v. Green (1825) 1 Craw and Dix Circuit Cases 158, a case later approved by the Irish Court of Crown Cases Reserved, the following rationale was offered: corroboration was required:
                “… because he [the accomplice] stands in so degraded a state, from the crimes of which he confesses himself guilty, that but little credit is due to him… unless corroborated in some material circumstances”.

        The same rationale is expressed in more contemporary language in Mr. Healy’s book mentioned above, at p.150:
                “… accomplices are already morally culpable, so that they are more likely to lie and deceive the Court…”.

        This, indeed, is in accordance with the judgment of Lord Reading C.J. in the leading English case of R. v. Baskerville [1916] 2KB 658. There, at p. 665 it is said:
                “The Rule of Practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal.”

        If this is so, it makes no sense to say that for entirely technical reasons the ruling will be confined to someone who is admittedly one particular type of criminal or to say that his status as a criminal requires a warning to be given, but for part only of his evidence or statement and not for another part. To quote Sholl J. again in McNee v. Kay, at p. 530 of the Report:
                “Such reasoning would seem to be equally applicable whether a witness who has taken part in activities which infringe the law is chargeable in connection therewith with the same offence as the accused, either as principal or as accessory, or with a different and distinct offence.”

        It is of course manifest that anyone put forward as an accomplice witness for the prosecution is of necessary someone of compromised character. His Statement of Evidence is either true, or it is false. If it is false, that very fact demonstrates his bad character and unreliability; if it is true then his own confession to involvement in a crime is sufficient to establish that “but little credit is due to him”.

        Although a jury or other Tribunal of Fact must be warned of the dangers of relying on accomplice evidence it is of course well established law that, if they are so warned they may nevertheless act upon it if they are satisfied it is safe to do so.

        It appears to me that the rationale for the rule requiring a corroboration warning relates, at least in part, to the character of a person who is an accomplice, and not to his precise degree of participation in any particular crime which he alleges. If the character of the witness is an indication for caution in regard to his evidence, that character is a permanent attribute of the witness and does not vary from one part of his statement to the other. Accordingly it appears to me that, once a person has been identified as an accomplice in any crime (or at least in any crime arising out of the same sequence of facts of which he gives evidence) he is a witness whose evidence requires a corroboration warning and that this requirement cannot be avoided by editing his statement to suggest that he is not, in fact, an accomplice, at all. Accordingly, I do not accept either that it was proper to edit Mr. Dunlop’s Statements of Evidence by redacting the material which made his true status evident, or that the material so redacted could, at least without a special reason, be revived 5½ years later and made the subject of a new indictment. I do not consider that any special reason which might justify this course of conduct has been established. In particular I do not consider that his status as an accomplice constitutes such special reason.


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