Circuit Court dismisses criminal defendant's costs application after acquittal, ruling prosecution warranted due to defendant's suspicious conduct.

Neutral Citation No. [2014] IECC 1

The Circuit Court

South Eastern Circuit

Clonmel

County of Tipperary

Record no. WDDP0072/2010

The People at the suit of the Director of Public Prosecutions

Prosecutor

-v-

Michael Ryan

Defendant

Judgment of His Honour Judge Thomas Teehan delivered on 16th May 2014

1. This case proceeded before me and jury in Waterford between the 2nd and the 9th of July 2013. The accused was acquitted by

the jury on all 3 counts. The accused who was not legally aided now seeks his costs of the hearing.

2. Prior to the trial, a section 4E application was made before me and there was an aborted trial before Judge McDonagh and a jury.

No costs are sought in relation to either hearing.

3 The court has been referred to a number of decisions of the higher courts dealing with the issue of the granting of costs in criminal

cases. It is not in issue that the following principles have been established:

• Costs are at the discretion of the trial judge;

• detailed reasons should be given for how that discretion is exercised;

• the exercise of such discretion in criminal cases does not mirror the position which obtains in civil cases (i.e. costs must

follow the event unless the court, for special cause, to be mentioned in the order, should otherwise direct);

• nonetheless, the outcome of the case – acquittal – is the starting point of the court’s consideration of the issue (albeit

far from being the only relevant factor), and so it is not a neutral factor.

4. Of the authorities which have been opened to me in the course of very helpful submissions from both sides, the case which

provides most assistance is The People v Bourke Waste Removal Ltd and Others (a decision of the Court of Criminal Appeal chaired by

Mr Justice Hardiman and delivered on 25 April 2012) [2012] IECCA 66. In the course of a very comprehensive judgement, Mr Justice

Hardiman reviewed a number of decisions, and in particular the cases of Bell, Kelly, and McNicolas. Having done so, he set out 4

suggested tests which a trial judge might consider when dealing with the issue of costs. These are:

1. Was the prosecution warranted, both in regard to the matters set forth in the Book of Evidence, what actually

transpired at the trial, and what responses were made by or on behalf of the defendants prior to the trial?

2. Had the prosecution conducted themselves unfairly or improperly in relation to the defendants, by oppressive

questioning or otherwise, and had the prosecution been pursued with reasonable diligence and expedition?

3. What was the outcome of the prosecution? If an acquittal, was this on foot of a direction granted by the trial judge,

and if so, on what basis?

4. How had the defendants met the proceedings, both prior to and at trial, and had they associated themselves with

undesirable elements, or otherwise contributed to drawing suspicion on themselves?

5. Mr. Justice Hardiman made clear that the suggested tests were merely that, clearly having in mind that there can be enormous

variations as between cases, and that the circumstances of a case not under immediate consideration might warrant different or

additional tests. Having said that, I consider that the 4 tests in question form a sufficient and comprehensive guideline for this court

in assessing the issues raised by counsel on both sides.

6. As to the divergence in Judicial views as between the Bourke decision on the one hand, and the Kelly and McNicholas decisions on

the other hand relating to how an acquittal should be viewed, it seems to me that I must follow Bourke by reason of the fact that the

Court of Criminal Appeal – a divisional Court – hears appeals from the criminal arm of the High Court, on the civil side of which the

Kelly and McNicholas decisions were made.

7. With regard to test number 2, Mr Farrell makes no argument that the prosecution acted unfairly or improperly; nor does he submit

that the prosecution was not pursued with reasonable diligence and expedition.

8. Nor should test number 3 occupy much of the court’s time. No direction was given by me, at the end of the prosecution case or

later, to the jury to find the accused not guilty. An application for such direction was sought after the prosecution had closed its

case, and detailed arguments made by the defence; nonetheless, I was of the view, taking the prosecution case at its height, that

based on that case a conviction by a jury properly instructed could be regarded as safe. Of course, the outcome was an acquittal by

the jury, and I must give that factor its due weight.

9. On the 4th test I regard this as difficult to separate totally from the ingredients of the first test. Certainly, the conduct of the

defence was not in any way exceptionable. Factually, very little was in dispute, and the focus of the defence – very properly – was

on the interpretation to be put on the factual matters adduced in evidence by the prosecution. Although this was a relatively lengthy

trial for the Circuit Criminal Court, there was a considerable body of evidence, and the length of the trial was not contributed to in

any way by defence tactics of any doubtful propriety. Indeed – and this is not in any way a surprise in view of the composition of the

defence team – the relatively smooth running of the trial was contributed to in no small part by the responsible way in which the

prosecution case was met. Mr Owens did not for a moment argue to the contrary on this issue.

10. To turn then to the first issue: was the prosecution warranted? On the basis of the Bourke decision, this needs to be looked at

under 3 heads:

1. in regard to the matters set forth in the book of evidence: the answer to this, unequivocally, has to be – yes. On the

basis of what this contained, the State would have been rightly derided had the decision been taken not to prosecute,

given the contents of the Book of Evidence.

2. What actually transpired at the trial: a similar answer must be given in relation to this question. The evidence at the

trial was broadly in line with the contents of the Book of Evidence, and nothing which transpired at the trial itself points

me to a different view.

3. What responses were made by or on behalf of the defendant prior to the trial: it seems to me that this is by far the

most central issue in the case, and has to be looked at in conjunction with that portion of test 4 which reads “(did the

defendant) contribute to drawing suspicion on himself”? In this regard, Mr Owens refers to the fact that, when originally

questioned, Mr Ryan gave answers which, in the light of subsequent discoveries concerning the interaction between him

as a developer and Mr Forsey as a local representative, threw a huge amount of suspicion on to him. He also argues that

Mr Moore, the bank manager, had no involvement in the first monetary transaction, and that the loan document misstated

the total amount which was handed over to Mr Forsey. Additionally, he says that the loan document made no reference

to interest, to the manner of proposed repayment, or to any schedule of proposed repayment. He further points out that

Mr Ryan, when questioned by Gardai, refused to comment on a number of matters: whether the loan was interest-free;

the advice given by Mr Moore; and in relation to what he had said in his first statement. Mr Farrell, on the other hand,

argues that the real issue in the case was the alleged falsity of the loan document, and the jury rejected the

prosecution’s arguments. He points to the openness and traceability of the payment involving Mr Moore, to the fact that

the bank manager advised Mr Ryan to consult a solicitor, and to the names of the parties being on the documents. He

states that Mr Ryan cooperated with the Gardai to a considerable extent, including the giving of explicit authority to them

to go to his solicitors and examine all necessary documentation in their offices and on their computers. He argues that

there is nothing either wrong or unusual in backdating documents such as loan agreements, and points to the acceptance

by Detective Garda Keevans at the trial that the date at the end of the document and the signature of Mr Forsey were in

the same pen.

11. Now, in this case there was nothing improper or outrageous either in the investigation or in the prosecution of the case. Neither

was there anything improper or outrageous, once the investigation started, on the part of Mr Ryan or his legal team. These

considerations cancel each other out, as it were, but of course the decision in Bourke means that the prosecution has to go to

greater lengths than the defence in asking the court to accept its arguments even in a situation, such as here, where the verdict

was not an acquittal by means of a direction by the trial judge to find the accused not guilty.

12. Ultimately, and not without some hesitation, I would have to say that the prosecution have discharged that burden. In 2006,

when the events giving rise to the prosecution were taking place, developers and local representatives (and, indeed, others involved

in the planning process) could not have been unaware of a deep suspicion which the public had at that time concerning the entire

process and the question of corruption surrounding the type of large-scale development which Mr Ryan and his partners had in mind

at the time. Mr Ryan, like any accused person, enjoyed the presumption of innocence throughout the investigative and prosecutorial

processes; the acquittal by the jury vindicated this. However, as somebody who was dealing in large amounts of money and with

ready access to a highly competent firm of solicitors, and who as a successful businessman could not have been devoid of – at the

very least – a reasonable quotient of business acumen and shrewdness, it was incumbent on him to ensure that there was a high

degree of openness surrounding a transaction involving a reasonably substantial sum of money as between him and a local public

representative in respect of all aspects of the transaction. That was not present, save for that part of the transaction where Mr

Moore became involved. The fact that the amount was misstated in the document which recorded the transaction and that the

document was silent on important details concerning repayment inevitably give rise to a huge degree of suspicion. At the trial, there

was no blame even hinted at on the part of the solicitor who was instructed by Mr Ryan to draw up the document, so the

responsibility for these anomalies has to be laid at the door of Mr Ryan himself. I accept at face value what Mr Farrell says concerning

the backdating of documents. However, having initially engaged with the Gardai by providing a written statement, Mr Ryan failed to

address the seeming anomalies referred to by me. I am not suggesting for a moment that Mr Ryan did not have the right to remain

silent on any issue; what I am saying is that, having chosen to engage by making a statement, if he had addressed these issues head

on then, or at least before the Gardai visited the offices of his solicitor, the decision of the Director to prosecute would, to put it its

very least, have been a more difficult one. In reference to the tests, I would have to conclude that this response on the part of Mr

Ryan contributed to drawing suspicion on himself.

13. I therefore conclude that the prosecution was warranted. I have considered the option of awarding some portion of the costs to

the defence; I conclude that it is not appropriate in this case. These findings, and the basis on which they are made, drive me to the

conclusion that the prosecution has discharged the relatively heavy burden on it, and I refuse the application for costs.