Supreme Court allows appeal on abuse of process claim due to excessive delay in prosecution of related charges.

THE SUPREME COURT

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 of O’Donnell J. delivered the 26th day of April, 2012.

1 I agree with much of the analysis contained in the majority judgment delivered by the Chief Justice and the thrust of the dissenting

judgment of Hardiman J. But since I differ from the Chief Justice on the outcome of the case, and from Hardiman J. on one aspect of

his analysis, it is necessary to set out my own views on this matter. For that purpose I gratefully adopt the statement of the facts

comprehensively set out in the judgment of the Chief Justice and will attempt to set out my views of the facts and the relevant law

as succinctly as possible.

2 In my view, the issue in this case is whether the prosecution of Mr. Cosgrave on the charges contained in Bill No. 1216/2010

pending before the Dublin Circuit Criminal Court (which for ease of reference I will call the “corruption charges”) some five and a half

years after his plea and conviction to a charge contained in Bill No. 4330/2005 (which I will refer to as the “Electoral Act charges”)

would amount to an abuse of the process. The first question is whether the first case comes squarely within the principle identified

for the first time in the speech of Lord Devlin in Connelly v DPP [1964] AC 1254 where he considered that in general, a judge should

stay an indictment when he is satisfied that the charges in the indictment “are founded on the same facts as the charges in a

previous indictment on which the accused has been tried, or form or are part of a series of offences of the same or a similar

character as the offences charged in the previous indictment”. Lord Devlin observed that a judge would take this course “because as

a general rule it is oppressive to an accused for the prosecution not to use Rule 3 where it can be properly used. The 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”.

3 As Hardiman J. points out, there is considerable vagueness about the electoral charge to which Mr. Cosgrave pleaded guilty. The

offence contained in that charge was an offence of failing to declare any single donation exceeding a value of £500 received between

the 15th of May and the 31st December 1997. No specified donations were particularised and accordingly it followed that the offence

could be proved by establishing any donation during that time which was not declared under the electoral acts. The statement of

evidence provided by Mr. Frank Dunlop, the principal witness for the prosecution in that case, referred to and specified ten payments

including the payments in the Davenport Hotel alleged to have occurred on the 30th of October 1997 and that in Buswells hotel

alleged to have occurred on the 23rd December of the same year and which payments are now undoubtedly the subject of the

corruption charges. It follows that it is at least possible that the Electoral Act charges included the Davenport and Buswells hotel

payments. However I am prepared to approach this case on the basis that although those payments were referred to in the

statement of evidence submitted in the Electoral Act charges, they were not intended to be the subject of the charge under the

Electoral Act. However even on that assumption, generous as it is to the prosecution, it seems plain to me that the corruption

charges can be said to be founded upon the same facts as the Electoral Act charges before the Court in 2005. As Hardiman J. points

out, the facts involved in the corruption charge, namely the payments in both the Davenport and Buswell hotels, were relied upon in

the Electoral Act charges if for no other reason than they are contained in and specified in the evidence of the principal prosecution

witness in that case. Further, I would be prepared to hold that they are part of a series of offences of the same or a similar character

as the offences charged in a previous indictment. Fundamentally however, the issue is whether a strict or broad approach is taken to

the concepts of “the same facts” and “offences of a … similar character” contained in the dictum of Lord Devlin in Connelly. For a

number of reasons I think it is plain that a reasonably broad approach should be taken to these phrases.

4 First, I think it is a relevant consideration that the charges of non declaration of contributions and those of corruption are linked

both as a matter of fact, history and law. It is of course possible to commit the offence of non declaration in circumstances where

there is a mere bookkeeping error unconnected to any hint of corruption. It is also possible to make corrupt payments to a politician

which do not relate to an election. However I do not think it is unrealistic to recognise that the 1997 Act was introduced at a time of

justifiable public concern over revelations in a series of tribunals about large contributions made covertly to politicians in each case

justified almost routinely as contributions to election campaigns and support of the democratic process. The 1997 Act was introduced

not just to ensure transparency about the identity of donors to politicians and political parties, but also to seek to deter the evil of

corruption by requiring publicity for donations, and also by creating an offence more easily prosecuted than corruption charges which

were notoriously difficult to detect, uncover and prosecute. That the offences are closely related as a matter of law is perhaps best

illustrated by the provisions of s.3 of the Prevention of Corruption (Amendment) Act 2001 which provides as follows:-

“3.—(1) Where in any proceedings against a person to whom this section applies for an offence under the Public Bodies

Corrupt Practices Act, 1889, as amended, or the Act of 1906, as amended, it is proved that—

(a) the person received a donation exceeding in value the relevant amount specified in the Electoral Act, 1997 , or the

Local Elections (Disclosure of Donations and Expenditure) Act, 1999, as appropriate,

(b) the person failed to disclose the donation in accordance with that Act to the Public Offices Commission or the local

authority concerned as appropriate, and

(c) the donor had an interest in the person doing any act or making any omission in relation to his or her office or

position or his or her principal's affairs or business,

the donation shall be deemed to have been given and received corruptly as an inducement to or reward for the person

doing any act or making any omission in relation to his or her office or position or his or her principal's affairs or business

unless the contrary is proved.”

Accordingly, in certain circumstances non compliance with the Electoral Act disclosure requirements creates a presumption of

corruption. Such a presumption is based upon common sense and experience. In this regard I do not think it is irrelevant that a

politician convicted of an offence of non disclosure of a large donation will incur a stigma far beyond anything that might attach to a

failure to make an official return in a timely manner. It is for these reasons that it is in my view appropriate to consider the offences

as part of a series of similar offences both in law and in fact. In that regard, the fact that Mr. Dunlop had on a number of occasions

recited all the payments made to Mr. Cosgrave indicates that they were factually connected as a series of payments.

5 My conclusion in this regard is reinforced by consideration of another aspect of the dictum of Lord Devlin in Connelly. He observed

that the Court should stay an indictment “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”. The reference to Rule 3 was a reference to the Rule 3 of Schedule 1 of the Indictments Act

1915 which permitted the joinder in the same indictment of offences which were founded on the same facts or form or are part of a

series of offences of the same or similar character. The same test applies in Irish law. Not only is this a clear genesis of the language

used by Lord Devlin, but it also provides a useful test for considering what is covered by the principle. It seems obvious to me that

the Electoral Act charges and corruption charges could have been joined in the same indictment. Indeed any application for separate

trials would in my view have been doomed to failure. Mr. Dunlop was the principal witness in both matters. The facts were closely

related and it was plainly both appropriate and indeed desirable that all the factual matters relating to the financial transactions

between Mr. Dunlop and Mr. Cosgrave should be dealt with at the same trial. If therefore the offences could have been joined in the

same indictment then the explicit burden of Lord Devlin’s judgment in Connelly, is that they should have been, unless there were

special circumstances which would justify the judge in exercising his or her discretion not to apply that general rule.

6 This conclusion is also reinforced by consideration of the rule in Henderson v Henderson (1843) 3 Hare 100. There can be little

doubt that if the analysis in Henderson v Henderson is capable of being applied to the facts in this case, then the charges were

sufficiently connected to have been capable of being brought in a single set of proceedings. While there was some debate in this case

as to the applicability of that principle to criminal proceedings, it seems plain from any reading of Lord Devlin’s judgment in Connelly

and his reference to Henderson that he considered that it identified either the same, or a closely related principle. While I readily

accept that broader considerations attach to criminal prosecutions in which the public interest is an issue by contrast to inter partes

civil proceedings, that distinction is more relevant to the question of whether there are special circumstances justifying departure

from the principle, rather than to the existence of the principle itself. It seems that the reference to Henderson v Henderson in Lord

Devlin’s judgment in Connelly indicates that it was not intended that too narrow an approach should be taken to the concepts of

“same facts” or “offences of a similar character”. Indeed, the division in Connelly between the speeches of Lord Devlin and Lord

Morris of Borth y Gest can be seen as a division between an approach which would have taken a slightly broader view of the principle

of autrefois acquit and Lord Devlin’s approach which was to identify a jurisdiction broader than autrefois acquit or res judicata but

which sought to pursue the same underlying objectives. Again, this is consistent with taking a broad rather than a narrow view of

what constitutes the same facts, or a series of similar offences.

7 Finally, this issue can be tested by considering the position if the sequence of prosecutions were reversed. If Mr. Cosgrave had

been prosecuted on the corruption charges alone and had been either convicted or acquitted, and it had then been sought to

commence a separate prosecution for the Electoral Act offences, I do not think that a court would have any difficulty finding that

such a course was impermissible and offensive to the principle outlined in Lord Devlin’s speech in Connelly. But if so, that can only be

because the offences are based on the same facts or form part of a series of similar offences.

8 Prima facie therefore, these offences could have been tried together, and since as I understand the entirety of this Court accepts

the principle outlined by Lord Devlin in Connelly v DPP, then it follows that these offences should, at least in principle, have been tried

together. I accept also that that general principle is subject to exceptions and the court’s discretion. I also would be prepared to

accept that that discretion is a broad one when applied in proceedings where the public interest in the prosecution of criminal

offences must be taken into account. The question here is whether the facts of this case constitute a permissible exception to the

general rule in Connelly. It will be apparent therefore that I have reached a point similar to that arrived at in paragraph 50 of the

judgment of the Chief Justice but by a somewhat different route. As I understand it, she considers that this case falls within an

exception to a broad principle of fairness because of two factors. First, the exchange of correspondence in 2005 showing that Mr.

Cosgrave was aware of a corruption allegation, and second, the fact that the Director of Public Prosecutions considered it necessary

to secure the prior prosecution and conviction of Mr. Dunlop and his agreement to give evidence against other councillors before

initiating criminal proceedings against those councillors, including Mr. Cosgrave.

9 Before considering the significance of these factors I think it is useful to consider the reason for the general principle outlined for

the first time in Connelly, and applied in R v Beedie [1998] QB 3735, and CPS v Mattu [2009] EWCA Crim. 1483. This, it seems to me,

is at least akin to the general principle underlying the provisions of the indictment rules permitting the joinder of proceedings and

reflected also in the principles of autrefois acquit/convict, res judicata, and the principle in Henderson v Henderson. A reason often

advanced underlying all of these related principles is the necessity to avoid the waste of court time, which is an expensive and limited

resource. This is a weighty consideration but in the present context it is perhaps the least significant matter. In my view, the

principle exists to advance important interests of the criminal justice system.

10 In the first place, it is entirely desirable that all facts which are to be the subject of dispute and determination should, if possible,

be resolved in a single forum. While separate adjudication cannot be avoided, it nevertheless creates an inevitable risk of inconsistent

decisions which can only undermine confidence and respect for the system as a whole. It follows that the system should seek to

avoid such an eventuality, at least where possible. This was explained by Lord Devlin at page 1353:

“There is another factor to be considered, and that is the court’s duty to conduct the proceedings so as to command

the respect and confidence of the public. For this purpose it is absolutely necessary that issues of fact that are

substantially the same should, whenever practicable, be tried by the same tribunal and at the same time. Human

judgment is not infallible. Two judges or two juries may reach different conclusions on the same evidence, and it would

not be possible to say that one is nearer than the other to the correct. Apart from human fallibility differences may be

accounted for by differences in the evidence. No system of justice can guarantee that every judgment is right, but it

can and should do its best to secure that there are not conflicting judgments in the same matter. Suppose that in the

present case the appellant had first been acquitted of robbery and then convicted of murder. Inevitably doubts would be

felt about the soundness of the conviction. That is why every system of justice is bound to insist upon the finality of the

judgment arrived at by a due process of law. It is quite inconsistent with that principle that the Crown should be entitled

to reopen again and again what is in effect the same matter.”

11 A separate but also weighty consideration is the manner in which an accused person is dealt with by the criminal justice system.

The development of the civilised system of the trial of offences also involves the treatment of the accused person in a manner which

is demonstrably fair and which thus maintains confidence in and public respect for the system of criminal prosecutions and promotes

acceptance of its decisions. We have long since left behind the concept of trial by ordeal, but it cannot be denied that for an

accused person a trial, particularly a trial on indictment and one which results in conviction, is often a humiliating and stressful

experience. It is, after all, a public charge of criminality by the law enforcement bodies of the State, and where conviction occurs, a

public determination of guilt. There is an important and vital public interest in securing the trial and where appropriate, the conviction

of guilty persons, but there is also an important interest in ensuring that the process is not arbitrary or oppressive or needlessly

humiliating. By the same token, when a person is convicted and sentenced, the rehabilitative purposes of the system are engaged

because the convicted person is informed of the penalty imposed and encouraged to believe that on serving such sentence they have

an opportunity of resuming a place as a member of the community after, in the well worn phrase, they have paid their debt to society

and put those matters behind them. Those values are subverted if an accused person is subjected to repeated or sequential

prosecutions and if long after they have pleaded guilty and been punished, they are without warning, subjected once again to the

criminal process. Finally, there may be valid tactical considerations of which any accused person is entitled to take account in

entering a plea of guilty. It is by no means inconceivable that when faced with a number of offences, an accused person might have

elected to exercise his or her right to put the prosecution on proof of all such matters. Since the outcome of the decision of this

Court on this appeal is that there will be a trial of the corruption charges, it is not appropriate to consider these matters in any detail

but the fact is that at a minimum by entering a plea to the Electoral Act charges, Mr. Cosgrave’s options have been more constrained

than they would have been if all the cases had been tried together.

12 These are considerations which can be characterised as the legitimate interests of the accused in a criminal process, but they are

also matters in which the public has an important interest. It is important to the integrity of this system, and therefore to public

confidence in its processes, that the procedures by which a conviction is secured after a criminal trial are seen to be fair and to

embody the values of justice and fairness to which a society holds itself. That is at least in part what is comprehended by a

guarantee that trials of offences will be conducted in due course of law. In my view it is important to have regard to these matters in

considering whether this is an exceptional case which justified the separate trials of matters which could have been tried together.

13 I cannot accept the argument made on behalf of the Director of Public Prosecutions in this case that the Court should somehow

find that Mr. Cosgrave and by implication, his legal advisors were “fully aware of the existence of the outstanding investigation”. In

this regard the investigation can only be a criminal investigation resulting in the charges now before the Dublin Circuit Criminal Court.

The Director of Public Prosecutions places heavy reliance on correspondence between Detective Chief Superintendent McKenna of the

Criminal Assets Bureau and Messrs. Garrett Sheehan in 2005. In that correspondence already recounted in the judgment of the Chief

Justice, Detective Chief Superintendent McKenna had sought an interview with Mr. Cosgrave which, importantly, he proposed would

not be a cautioned interview. Messrs. Sheehan and co. pointed out that Detective Chief Superintendent McKenna’s letter seemed to

contain an implication of corruption, that Mr. Cosgrave had denied receipt of any corrupt payment from Mr. Dunlop, and that in any

event, the Director of Public Prosecutions was proceeding with the Electoral Act charge and in those circumstances it would be

inappropriate to meet with the Detective Chief Superintendent at that time.

14 In this case Mr. Cosgrave and perhaps more importantly, his solicitor, who has extensive experience in criminal matters, have both

sworn on oath that they believed that by pleading guilty to the Electoral Act charges Mr. Cosgrave was meeting the case against

him, and that that would be an end of matters in relation to payments received from Frank Dunlop. This is set out explicitly in the

affidavit of Mr. Eagar at paragraph 29 as follows:

“On that specific basis the applicant was advised as to the charges in the case against him and how he might deal with

the allegations being made against him by the prosecuting authorities. This advice was given in the belief and

understanding that the entirety of the case being investigated by the prosecuting authorities against the applicant was

contained in Bill No. 430/2005 and that all charges being preferred in relation to the evidence available to the prosecution

had been preferred.”

At paragraph 41(4) Mr. Eagar said that it was clear and apparent that:

“The applicant had herein arranged his affairs and faced up to the prosecution against him in the manner in which he did

in 2005 in his belief and that of his legal advisors that this concluded matters concerned the allegations made by Frank

Dunlop set out in the statement of evidence contained in the book of evidence in the original Bill No. 430/2005.”

It is necessary here to recall that among the matters alleged by Frank Dunlop in the statement of evidence, were the payments of

monies to Mr. Cosgrave in the Davenport and Buswells hotel in October and December 2007 which now form the basis of the

corruption charges.

15 It is a regrettable feature of human interaction that a person with information often assumes that the other person clearly

understands his actions. It is entirely possible that the relevant gardaí were focussed on a possible criminal prosecution of Mr.

Cosgrave on the corruption charges and assumed that Mr. Cosgrave and his solicitor shared that understanding. However, I would be

very slow to conclude that the account given by Mr. Eagar at paragraphs 29 and 41 of his affidavit was either false, or if correct was

somehow naïve and misguided, particularly in the absence of any cross-examination. I see no reason to draw any such conclusion

here. It is quite true that there was correspondence between Chief Superintendent McKenna and Messrs. Sheehan and Company

which made it clear that Detective Chief Superintendent McKenna was involved in some investigation of an allegation of corrupt

payment from Mr. Dunlop. However, it must be recalled that Detective Chief Superintendent McKenna was then the Chief Officer of

the Criminal Assets Bureau and wrote to Messrs. Sheehan in that capacity. That Bureau is a multidisciplinary body comprised of

officials from a number of different fields which has, among other things, the task of the recovery by civil process of assets

demonstrated to be the proceeds of crime, pursuant to the provisions of the Proceeds of Crime Act 1996. As a matter of simple fact,

such proceedings were indeed commenced soon thereafter in relation to the Jackson Way Properties in which Mr. Dunlop was a

witness. If any inference was to be drawn from the Chief Superintendent McKenna’s reference to an uncautioned interview, it was

surely that Mr. Cosgrave was not then the target of a criminal investigation. I do not think that in the light of these matters and

perhaps as importantly the almost complete silence and, at least from Mr. Cosgrave’s perspective, inactivity for the five and a half

years following his conviction, that it is at all appropriate to draw the conclusion that Mr. Cosgrave must have been aware that a

criminal investigation was ongoing.

16 I note that in this regard the Chief Justice does not conclude that Mr. Cosgrave was aware of any criminal investigation. Rather

she observes that “the appellant was aware of corruption allegations against him although he did not know of written statements

alleging corruption”. I agree with this conclusion. However I cannot agree that this is enough to constitute an exception to the

general principle that there should not be sequential trials of related criminal charges. If anything, I would draw the opposite

conclusion from that circumstance. From the moment Mr. Dunlop dramatically changed his position in giving evidence before what was

then the Flood Tribunal, it could be said that corruption allegations were in the air. That was the precise context in which his

evidence was given. It could be said that the statement of evidence contained in the Electoral Act charges was pregnant with a

suggestion of corruption in so much as it identified certain payments, including those in the Buswells and Davenport hotels, as being

unconnected to any electoral expense. It is the fact that these suggestions and allegations were in the ether and that Frank Dunlop

was the witness in the Electoral Act prosecution, coupled with the general principle that all available charges would be brought

forward at the same time, which contributed to Mr. Cosgrave’s belief that the Electoral Act charges were the full extent of the

criminal charges which were to be brought against him. In this regard the existence of a general principle, or even a general practice,

that all offences arising out of the same set of circumstance should be tried together provides an important frame of reference for the

question as to whether Mr. Cosgrave and his advisors believed or ought to have believed that a criminal charge of corruption was in

train. For example, in R v Beedie it was clear that the unfortunate young girl had died as a result of inhalation of toxic fumes from the

defective heater. A manslaughter charge was always therefore a possibility. It was the fact that only the regulatory offence was

prosecuted at least initially, which made it an abuse of process to subsequently proceed with the manslaughter charge. Furthermore,

the complete silence of the prosecution for the five and a half years which followed the plea of guilty here can only have confirmed

Mr. Cosgrave and his solicitor in their views and made it all the more shocking and distressing both for Mr. Cosgrave and his family,

when the charge in 2010 emerged. If at any time prior to his plea of guilty on the electoral charge Mr. Cosgrave and/or his solicitor

had been made aware of the possibility of a prosecution for corruption, then such a possibility would I accept be an important fact

and in some cases, a decisive factor. However, I cannot accept that the matters referred to come close to establishing that degree

of knowledge.

17 The second feature relied upon is contained in paragraph 92 of the affidavit of Garda Harrington sworn in the related Kennedy

proceedings and referred to and relied upon in these proceedings. It is at this point that my analysis tends to depart from that of my

colleague Hardiman J. In the first place I do not consider that paragraph 92 of Garda Harrington’s affidavit is necessarily hearsay if it

is understood, as indeed I understand it, as recounting the fact of the direction given by an agent of the Director of Public

Prosecutions to a group including Garda Harrington. In any event I would be reluctant to decide this case on that basis. More

importantly, in my view the postponement of one trial because of a desire to seek the prior trial and conviction of a co-accused or

accomplice who would be a vital witness, is at least in principle a valid reason for postponing a trial. Furthermore that is a matter

upon which this Court should be slow to seek to substitute its judgment for that of the prosecution authorities. I fully agree with the

observations of the Chief Justice on the role and function of the Director of Public Prosecutions in making a decision to prosecute at

paragraph 17-25 of her judgment. It is not normally the function of the Court to review the prosecution case or the manner in which

it is prepared. In considering whether an abuse of process has occurred, the Court should resist any invitation to become involved in

what can easily become an after the fact time and motion study in the isolating, distorting and unforgiving glare of hindsight of how

and why a particular prosecution advanced the way it did. There is an important distinction, grounded in the Constitution, between

the role of a prosecution proffering a charge on behalf of the People, and that of a Court in adjudicating upon that charge. In general

I agree with the observations of Gannon J. in O’Flynn v District Justice Clifford [1988] IR 740, approved by Keane C.J. on behalf of the

Supreme Court in PM v Malone [2002] 2 IR 561 that in general the Courts “must remain detached and independent in relation to all

matters antecedent to laying of a charge against a person of a criminal offence”. There are of course occasions of which PM v

Malone was one where the Court must have regard to the process of an investigation when that is properly the subject matter of a

valid claim of illegality or of a delay rendering the prospect of a fair trial impossible. However it is in general up to the prosecution

authorities to consider when there is sufficient evidence to initiate a formal charge and to make decisions as to how best to bring

forward such a charge. It is I think noteworthy that in the landmark United States case of Barker v Wingo (1972) 407 US 514, a case

which has been cited with approval in this jurisdiction, the basis for the delay in that case (which in the event was found not to be a

terminal breach of the right to a speedy trial guaranteed explicitly by the United States Federal Constitution) was the desire to

advance the prosecution of a co-accused and thereafter to secure his evidence against the accused.

18 I therefore agree with the Chief Justice that the prosecuting authorities are not debarred from seeking to prosecute a co-accused

and potential witness before launching a formal prosecution against another party. It is not necessary here to consider what limits

there may be upon that decision or what other considerations could arise. However, that consideration does not resolve this case. It

may justify the postponement of Mr. Cosgrave’s trial. What is however, required for a departure from the general principle of joinder of

all matters arising out of the same set of circumstances, is a justification for a process of separate trials. There was here no reason

of urgency, or limitation of time, or subsequent development of evidence which justified separating the trial of the corruption charges

from the Electoral Act offences. They were both ready to proceed together. If there is a difficulty with one then that was a reason to

defer both rather than to depart from the general principle of joint trial. That after all is what normally occurs when there are multiple

defendants in a case or separate offences involving different complainants. The fact that the prosecution may have had a valid

reason for delay of the trial did not mean that there should be also be separate trials with the consequence that the Mr. Cosgrave

was necessarily exposed to a process recognised at least undesirable, and potentially oppressive of the accused. Accordingly, the

tactical decision of the prosecution in relation to the desirability of the prosecution of Frank Dunlop may have been a valid reason to

postpone Mr. Cosgrave’s trial but it was not a sufficient reason to try him in sequential trials for matters arising out of the same set of

circumstances, at an interval of more than five and a half years and at a time when he, 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 the task of rebuilding his life. I would

allow the appeal.