Supreme Court dismisses appeals against High Court orders prohibiting a third criminal trial on same evidence.

THE SUPREME COURT

[Appeal No: 405/13 and 538/13]

Denham C.J.

Hardiman J.

O’Donnell J.

Dunne J.

Charleton J.

Between/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

NIALL BYRNE

Respondent

and

DAVID BYRNE

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 17th day of February, 2015.

GENERAL BACKGROUND.

1. These are two separate appeals in judicial review proceedings. Niall Byrne and David

Byrne are two men with the same surname. But this is pure coincidence and they are

entirely unrelated. Each of these men stands charged with serious offences, allegedly

committed in the course of a tiger kidnapping of an employee of a security firm, his wife

and family. The offences with which they are charged included robbery and false

imprisonment, in respect of which sentences of life imprisonment are available.

2. In the High Court (Hogan J.), Mr. Niall Byrne was successful in prohibiting a third trial

on these charges, two juries having already disagreed. This result is expressed in the

judgment of the learned trial judge delivered the 5th day of September, 2013 and the

order of the High Court perfected the 23rd day of July, 2014, (the actual order bears the

date 23rd July, 2013 but this cannot be correct since it predates the judgment. I assume

that 2014 is intended).

3. The Director of Public Prosecutions has appealed the order in favour of Mr. Niall

Byrne. Mr. David Byrne, on the other hand, was unsuccessful in the High Court,

according to the terms of the same judgment and order. He has appealed against this

order.

FACTS OF THE CASE.

4. On the 13th March, 2005, almost ten years ago, a tiger kidnapping took place. The

victim was one Mr. Paul Richardson and he and his employer, Securicor, were robbed of

2.28 million euro.

5. On the 27th April, 2005, Niall Byrne was arrested under s.30 on suspicion of

possession of information concerning the possession of a firearm at 28 Ashgrove,

Raheny on the 13th March, 2005. He was released the following day without charge.

6. On Monday 8th May, 2006, just over a year after his initial arrest, Mr. Byrne was

arrested and charged with various offences. These were the robbery of Paul Richardson,

the false imprisonment of four members of the Richardson family at Ashgrove, Raheny

on the 13th/14th March, 2005. He was brought before the Dublin District Court where

the Director of Public Prosecutions objected to bail. He was remanded in custody to

Cloverhill Prison.

7. On the 12th May he applied again to the District Court at Cloverhill for bail. The DPP

continued to object and he was refused bail.

8. On Monday 15th May, 2006, he sought bail before the High Court. The Director

continued to object to bail. He was however granted bail, on his own surety of €3,000,

€1,000 of which was required to be lodged and an independent surety of €90,000,

€30,000 of which was required to be lodged. There were further onerous conditions

including a need to sign on twice daily at Sundrive Road Garda Station, to reside at a

particular address in Crumlin; to remain in the jurisdiction; provide the gardaí with a

mobile number at which he could be contacted at any time; surrender his driving licence;

surrender his passport and undertake not to apply for a duplicate; have no contact

whatever with any of the witnesses; have no contact whatever with any of the

Richardson family; have no contact whatever with any Securicor staff.

9. The applicant’s father, Anthony Byrne, a retired bus driver who was in a poor state of

health was accepted as a surety.

10. While Niall Byrne was in custody he was held “on protection” because two of his

brothers are prison officers. This is a more severe and more isolated form of detention.

11. The Book of Evidence was served on Mr. Byrne in August 2006. Two of the

witnesses are his older brothers, Gary Byrne and Paul Byrne and another is Graham

Coleman, his wife’s brother. Accordingly, Mr. Byrne was prohibited from being in

contact with these people. In an effort to have this condition lifted he informed the High

Court that their evidence would not be disputed at the trial but the Director maintained

his objection to any variation in the conditions of bail. This occurred on the 22nd

January, 2007.

12. The Book of Evidence which was served on Mr. Byrne was one 1,252 pages long

and incorporated the statements of proposed evidence of one hundred and fifty-three

witnesses and a list of thirty-four exhibits.

13. On the 16th January, 2008, a trial date was fixed for the 12th January, 2009, about

one year later.

14. On the 5th August, 2008, three and one quarter years after his initial arrest, he sought

a variation of his bail in order to allow him to attend at his stag party in Kilkenny and to

attend at his wedding in the period commencing the 3rd October, 2008. He was required

to sign on on a daily basis in Kilkenny Garda Station while at the stag party and was

excused signing on for the day of his wedding and the following day. He had to sign on

everyday during his honeymoon which ended on the 19th October, 2008 and had to have

this holiday within the State. The terms of signing on were altered from twice daily to

once daily on that occasion.

15. In January 2009, when the case came on for trial, four co-accused sought an

adjournment due to the late service of a notice or notices of additional evidence. Four

such notices were also served on Mr. Byrne between November, 2008 and January,

2009. He himself did not seek an adjournment of the trial and his counsel pressed for the

matter to proceed. He opposed the adjournment on the basis of his entitlement to an

expeditious trial and of the length of time which had elapsed since the alleged crime,

almost four years. The case was however adjourned and relisted on the 20th April, 2009.

16. The respondent’s first trial proceeded from April until July 2009 and was reported as

having been the longest running Circuit Court Criminal trial in the history of the State.

The Court sat on sixty-five separate days to hear it and three counsel appeared for the

prosecution.

17. The case against Mr. Byrne was entirely circumstantial. It was not alleged that he

had physically robbed the victim or imprisoned him and his family but rather it was

alleged that he provided information and thereby acted as part of a joint enterprise with

others who had done so.

18. It may be important to note that in the last sentence at para. 19 of the respondent’s

affidavit he categorically denies any involvement in “these heinous crimes”.

19. At the close of the prosecution case the respondent’s counsel unsuccessfully applied

for a directed acquittal. The learned trial judge however commented that the case against

him was the weakest of those before the Court.

20. Nine further notices (further, that is, to the four which had earlier been served), of

additional evidence were served by the prosecution between January and July 2009

making a total of 13 notices of additional evidence. These included the statements of

more than 150 further witnesses and thirty-one further exhibits, to add to the thirty-four

already notified. Accordingly, both the number of witnesses and the number of exhibits

increased by almost 100% by way of notices of additional evidence.

21. More than 200 witnesses gave evidence before the jury.

22. The jury commenced its deliberations on the 27th July, 2009 and continued to

deliberate on the 28th, 29th and 30th July, 2009.

On the 30th July, 2009, the jury convicted three of the co-accused but were unable to

reach agreement in relation to the charges against Niall Byrne and another accused. The

case against Mr. Byrne was remanded to the 2nd November, 2009.

23. On the day the trial ended the media carried reports of an interview with Mr.

Richardson saying that justice had been done and that he and his family could now get

on with their lives.

24. On the 19th October, 2009, the Chief State Solicitor notified Mr. Byrne’s solicitor

that a new trial date would be sought. Mr. Byrne says:

“The prospect of another lengthy trial imposed enormous psychological

pressure upon my family and himself and affected the mental health of both his

wife and himself adversely”.

25. On the 2nd November, 2009, counsel for the prosecution sought a new trial date, but

requested that it be not before October, 2010, because of the publicity the previous trial

had attracted. He also said he would have witness difficulties in the summer months of

2010. The court adjourned the matter for one week. On the 9th November, 2010, it fixed

the retrial date for the 1st February, 2010. It also ordered a transcript of the previous

trial, which runs to several thousand pages.

26. On that date, also, the Court varied the conditions of bail to relax the prohibition on

him contacting Anthony Byrne, who is his father, and Arena Coleman, his sister-in-law.

It also excused him from signing on on Christmas day 2009.

27. On the 17th December, 2009 the applicant sought a relaxation of his bail conditions

but this was refused, except to the extent that on being informed that Mr. Byrne was

expecting the birth of a child to his wife he was excused from signing on the day of the

child’s birth and the following day.

28. A further application to review the bail conditions was refused on the 21st

December, 2009.

29. In the meantime, on the 14th December, 2009, Mr. Byrne was granted leave by Mr.

Justice Peart to apply for various reliefs by way of judicial review in relation to

prejudicial publicity which was occurring all the time.

In January, 2010, the Circuit Criminal Court vacated the trial date of 1st February, 2010

because of this pending judicial review.

30. The judicial review application was heard in late October, 2010 and refused on 11th

November. The States application for costs, however, was also refused and an order

under the Attorney General scheme was made in favour of Mr. Byrne.

On 1st December, 2010, Mr. Byrne answered his bail in the Circuit Criminal Court. The

case was adjourned until the 3rd November, 2011.

31. On the 3rd February, 2011, the retrial was listed for six weeks commencing on the

24th October, 2011, about nine months later. However, on the 8th June, 2011 the

Director of Public Prosecutions applied to have the trial date vacated and a further date

fixed, due to the unavailability of prosecuting counsel. This application was resisted on

behalf of Mr. Byrne and was refused.

32. On the 24th October, 2011 when the retrial came on, the Court expressed concern

about the estimated duration of the trial or whether it could finish before Christmas. It

was said on behalf of Mr. Byrne that he was subject to very onerous bail conditions and

was most anxious that the trial would proceed. There was no judge available to hear the

trial on that date so it was adjourned until the following day when it was again adjourned

until the 27th November, 2011.

33. On that day the jury was empanelled to hear the trial which then proceeded. This was

six years and seven months after the alleged offences. It proceeded in a manner similar

to the first trial. Five further notices of additional evidence had been served between

October and November 2011, making an astonishing total of eighteen notices of

additional evidence in all.

34. The statement of the respondent’s father, Anthony Byrne, was read, by agreement,

by prosecuting counsel on the basis that he was gravely ill in hospital.

35. This second trial proceeded for twenty-five sitting days. The jury commenced its

deliberations on the 30th November, 2011 and continued them on the 1st and 2nd

December, 2011. On the latter day the jury announced that it was unable to come to a

majority verdict on any of the counts against Niall Byrne and he was further remanded.

36. On the 15th December, 2011, prosecuting counsel informed Judge Nolan that the

Director was seeking another trial date and sought a date for six to eight weeks in

January, 2013. At that time those convicted at the respondent’s first trial had an appeal

pending before the Court of Criminal Appeal. Prosecuting counsel said that if the co-

accused were successful in their appeals the prosecution would be seeking that any

retrial take place at the same date as the third trial of the respondent. After the hearing of

the appeal, the Irish Independent of 22nd January, 2015, report the acquittal of the two

of the co-accused.

37. On the 15th December, 2011, counsel for Mr. Byrne further responded to strongly

oppose the application pointing out that Mr. Byrne had been on very strict conditions of

bail for more than five and a half years and asserted his right to an expeditious trial. The

registrar said the earliest date available was the 1st October, 2012 and the judge fixed

that date. He also ordered a transcript of the second trial which runs to several thousand

pages.

38. The Director on this occasion consented to a relaxation of the terms of bail so that

signing on was required twice weekly, on Tuesdays and Thursdays. This was six years

and nine months after the alleged offence.

39. The second trial involved the evidence of 163 witnesses and the tendering of sixty-

seven exhibits. In total, the applicant has been subject to two trials which took a total of

ninety sitting days, not to speak of remand bail and mention dates. He has been required

to attend before the Criminal Court in excess of one hundred and twenty times, has spent

one week in custody “on protection” and has been subject to onerous conditions of bail.

These have impacted on his ability to organise and enjoy his working, personal, family

and social life, with conditions that require the expenditure of vast amounts of time

expense and inconvenience due to the requirements to sign on twice everyday for over

5¾ years. He has been unable to leave the State. These conditions have affected his

freedom of movement and his ability to work with considerable distress to his family. He,

his mother, and his wife have all been compelled thereby to seek medical assistance.

Personal circumstances.

40. Mr. Byrne and his wife have two children under the age of six with whom they live.

They also each have children from previous relationships one of whom aged fourteen

lives with them and another of whom, aged eight is in their custody on several days

during the week.

41. Mr. Byrne says that they are a “close, decent, hardworking, respectable and law

abiding family”. Two of his brothers are prison officers and his wife works full time for

the Revenue Commissioners. She has suffered illness as a result of stress and has had to

take sick leave both before and after his second trial. She has lost so much time at work

that she is not qualified for annual incremental pay increases.

42. Both he and his wife have been prescribed tranquilisers and sleeping tablets to help

them to cope with the stress of anxiety arising from the circumstances.

43. He says that his elderly mother believes that the trial process is over and the family

have not been able to bring themselves to tell her that a third trial is listed. He says this is

because they are gravely concerned for her health if she were to learn that they will have

to go through it all again for a third time.

44. At para. 42 of his affidavit, Mr. Byrne says that the proceeding have caused him and

his family considerable “stress, anxiety, uncertainty, hardship and disruption of their

social and personal lives”.

45. At the time of his arrest he was twenty-three years old and had been employed for

five years as a full time permanent employee of Securicor. He had himself been the

victim of several Securicor robberies and suffered post-traumatic stress as a result.

46. On the day of his original arrest he lost his job with Securicor and has had

considerable difficulty finding and keeping full time work since then because of the

proceedings, the stringent conditions of bail, the two lengthy trials, and the publicity.

47. After he was let go by Securicor he got a job as a driver. But he lost this replacement

job when his employer learnt of his being charged, in May 2006. He then set up as a

courier and was getting work from a local firm until the gardaí made enquiries of the

firm, after which he was no longer retained to do any work. He then got a job with a

transport company as a driver and was working with them for a year when the first trial

was about to commence in April 2009. He was told by the manager that the company

could not be seen to be associated with him, given the offence alleged against him and

the publicity the trial would attract and was told that his services were no longer

required. He got paid in lieu of notice and received a good reference.

48. After the first trial it took him some weeks to find new work and he eventually got a

job as a part-time driver. He was offered a full time position in October 2011 but he was

unable to take it up because of the pending second trial. He is still employed only on a

part-time basis.

49. The respondent further claims that he has been “socially ostracised”. He says that a

public house where he used to socialise will no longer permit him on the premises

because of his alleged association with the crimes. He cannot go abroad on holidays with

his wife and children and the children often ask why that is not possible.

Overall affect.

50. The applicant says, at para. 44, that his wife and children live “in absolute dread” of

his being convicted in the third trial and having to go to prison for a long time.

51. In summary, the applicant says that he is a thirty-two year old married man with

children who cannot plan for the future and who is severely handicapped on a daily basis

in his employment and otherwise. He says the criminal trial process “has wholly

absorbed my life since May, 2006” (para. 45). He has been subjected to two lengthy

trials, during which over 465 witnesses have given evidence.

52. He claims that he has been denied a right to trial with reasonable expedition and

refers to Article 6(1) of the European Convention.

53. According to the statement of opposition, the three people convicted on the first trial

were sentenced to between twelve and twenty-five years imprisonment.

54. None of the information set out above seems to me to have been contradicted in the

affidavit on behalf of the State.

55. I doubt if there is a case, not involving a delay in complaint or unavailability of the

accused, where a third trial has taken place so long after the alleged offence. None was

cited and neither was any case of a third trial after two jury disagreements.

Applicable law.

56. It appears from the statement of the facts set out in the first part of this judgment that

the Public Prosecutor proposes to put the respondent on trial for a third time before a

jury. On each of the two previous occasions the trial was heard to a conclusion and on

each occasion the jury disagreed notwithstanding that the first jury had no difficulty in

convicting other prisoners charged with the same offence. I conclude, as did the learned

trial judge, that this was, in each case, a disagreement on the merits, a result at which

there was scope for a conscientious and independent jury to arrive.

57. The learned trial judge held (para. 32) that “… it is not clear to me whether there has

ever been a third retrial in this jurisdiction following two jury disagreements in

circumstances such as the present one “.

58. On the hearing of this appeal I asked precisely this question of counsel for the

Director of Public Prosecutions, but he was unable to answer it. I have to say that I find

this extremely surprising since the Director has had the conduct of Public Prosecution

other than a few exempted categories such as fisheries prosecutions, since 1976. Prior to

that the Attorney General had the conduct of such prosecutions. If the law officers of the

State do not know whether there is has ever been a precedent for a third retrial, I can

only conclude that that is because no proper search was conducted. I believe that such a

search would have been conducted if there were any reason to believe that there was

any precedent for a third trial in circumstances such as the present.

59. As it happens, this Court has been concerned with the question of retrials after

disagreements or discharges between two relatively recent cases. I agree with the learned

trial judge that:

“It is clear from the Supreme Court’s decision in DS. v. Judges of the Cork Circuit

Court [2008] 4 I.R. 379 that while there is no firm ex ante rule in this regard, there

is what amounts to a working presumption against permitting a third trial following

two successive jury disagreements. Much will, however, depend on the

circumstances of the case.”

In DS, there were two judgments delivered in the Supreme Court, that of Denham J. (as

she then was, with which Hardiman, Fennelly and Finnegan JJ concurred and that of

Kearns J. with which Fennelly and Finnegan JJ concurred.

60. Again, I agree with the learned trial judge’s summary of what was agreed by all in

that case. This is set out with great clarity at para. 10 of the judgment of the present case.

Three points emerge:

(i) There is no ex ante rule prohibiting a third trial,

(ii) While the double jeopardy rule does not, as such, apply to this situation, if the trial is

indeed prohibited it will be by reason of the broader conception of “fundamental fairness

of procedures inherent in our Constitution”: see DPP v. Quilligan (No. 2) [1989] I.R. 46

at 57 per Henchy J.

(iii) While the Court must exercise its jurisdiction to prohibit a third trial with some

caution it must also seek to protect the due process rights of the accused.

61. Denham J. proposed to prohibit a third trial for a variety of reasons including “the

fact that the trials have consumed six years of the accused’s life”; distress imposed on

the accused and his family and the fact that there was no change of the evidence

proposed to be tendered at the third trial. She concluded that:

“The Court is required to exercise a supervisory role, and to take into account all

the circumstances of the case which have been set out in the judgment. Bearing in

mind all of the circumstances of the case, I am satisfied that it would be oppressive

and unfair to prosecute a further trial in this case.”

62. In the judgment of Kearns J. he summarised a survey of the authorities as follows:

“There must come a time in the criminal process where repeated trials of a citizen

may come to be seen as oppressive and an abuse of discretion on the part of the

Director of Public Prosecutions. It may become an unfair procedure in itself to

retry. Put another way, a ‘breaking point’ may be reached where no further trial

should be permitted if the fairness and due process requirements of Article 38(1) of

the Constitution and Article 6 of the European Convention on Human Rights are to

be properly observed…”.

63. Kearns J. continued:

“… I think that in the ordinary course two trials which end in a jury disagreement

should be seen as an adequate discharge of the public’s interest in the prosecution

of crime unless there are unusual factual circumstances which suggest otherwise”.

64. Later in his judgment Kearns J. said:

“… reviewing the case as a whole, however, I see no circumstances which suggest

that there are unusual or exceptional circumstances which would justify treating

this case as one where a third trial should be permitted following the two jury

disagreements to date.”

(Emphasis added)

65. It is important to note what is said in a publication of the Office of the Director of

Public Prosecutions, “Guidelines for Prosecutors” (November 2010). This provides, at

para. 4.33:

“If a jury fails to reach a verdict in a particular case, or a trial otherwise does not

proceed to a conclusion, consideration should be given to whether the public interest

requires a second or subsequent trial of the issue. That consideration should include

an assessment of the likelihood that a jury on a retrial could deliver a verdict on the

available evidence. Where a second jury disagrees the public interest would not

normally require a third trial of the accused person but every case should be decided

on its own merits”.

(Emphasis added)

66. Another recent Irish case was cited, which I believe to be so different on its facts as

not to be helpful in the present case. This is AP v. DPP [2011] 1 I.R. 729. Here, the

applicant had been charged with fourteen counts of sexual assault but in three trials in

succession the jury was discharged as a result of what was said by the first witness. None

of the trials went beyond the first witness. The Supreme Court refused, in those

circumstances, to prohibit a further trial. The judgments of those of Denham J., Fennelly

J. and myself. Fennelly J. considered that it was important to bear in mind, that unlike

the case of DS, the preceding trials:

“… never reached the stage where the jury was required to consider its verdict. On

each occasion the trial came to a halt during the evidence of the complainant. The

Court has at best incomplete evidence as to the precise reason for the discharge of

the jury… ultimately I do not believe that the applicant has shown grounds for

prohibiting a further trial.”

67. Elsewhere in the Common Law world, on recent authority, the usual practice appears

to be very similar to that outlined above in the case of Ireland. The case of Carter v.

The State [2000] 1 WLR 384 was cited with approval by Kearns J. in DS. This was a

capital murder case from Trinidad decided by the Judicial Committee of the Privy

Council in London. The appellants were arrested the day after a murder in the year 1990

and held in custody, much of the time under sentence of death, until 1999. The

circumstances are admirably summarised in paragraphs 21 and 22 of the learned trial

judge’s judgment in this case. The general position in Common Law countries was set

out with great brevity and lucidity in the

opinion of Lord Slynn in the Privy Council:

“The respondent [the Crown] accepts that it is a common practice, though

not a rule of law, for the prosecution to offer no evidence where two juries

have disagreed but that the position here is different; only one jury was

unable to reach a verdict… [the other convicted but this was reversed on

appeal].

… it may be contrary to due process and unacceptable, as a separate ground

from delay, that the prosecution having failed twice should continue to try to

secure a conviction. In this case however both factors fall to be considered.

Their Lordships recognise that the trial judge has a great margin of

discretion in these cases and that they will not readily interfere with the

exercise of this discretion. After careful consideration, however, they are

satisfied that the combination of these two factors require the trial judge in

this case to stay the trial. For the prosecution to continue was wrong in

principle and constituted a mis-use of the criminal process”.

It therefore appears that in Ireland, and in the Common Law world generally, there

is a practice, expressed in various ways, of not proceeding to a third prosecution

after a jury has disagreed twice after full trials. In the present case the trials were of

quite unusual length, the first one was stated to be the longest Circuit Criminal Court

trial in the history of the State. This practice has been expressed in various ways, the

Irish DPP has said, in the document quoted above:

“Where a second jury disagrees the public interest would usually not

require a third trial of the accused person but every case should be

decided on its own merits.”.

The Privy Council stated the position of the Crown as being:

“… that it is a common practice, though not a rule of law, for the

prosecution to offer no evidence where two juries have disagreed…”.

That latter concession, of course, was made because the Crown could argue that

only one jury had disagreed: the others verdict had been quashed by the Court of

Appeal. But the statement of the practice remains.

Application of the Rule of Practice.

68. In DS, cited above, Kearns J. concluded that:

“I see no circumstances which suggest that there are unusual or

exceptional circumstances which would justify treating this case as one

where a third trial should be permitted following the two jury

disagreements to date.”

Decision.

69. In my view, it is not possible to refuse Mr. Niall Byrne the relief he seeks,

consistently with the decision of this Court in DS. I agree with the isolation of three

factors, in particular, in the judgment of Denham J., as she then was:

(i) The trials have consumed six years of the accused’s life,

(ii) The stress imposed on the applicant and his family,

(iii) The fact that there was no change in the evidence to be tendered.

70. The accused in the present case was arrested on the 27th April, 2005, very nearly ten

years ago. For the great bulk of that time, and in particular since he was charged in May

2006, the applicant, his wife and children “live in absolute dread” of his being convicted

and having to go to prison for a long time. This assertion is not merely uncontradicted: it

is entirely natural and predictable, especially having regard to the very long sentences,

up to twenty-five years, imposed on those convicted at the first trial. The fact that these

peoples convictions were set aside on appeal and that two at least of them have been

acquitted on a retrial, gives little comfort to the applicant or his family in this regard. This

case has consumed over nine and a half years of Mr. Byrne’s life, and that of his family.

71. Similarly, the applicant’s uncontradicted assertion that the trial process “has wholly

absorbed my life since May 2006” is entirely credible. It has grossly interfered with the

ability, so important to a young married man with children, to develop a career or

business so as to support them, and in furtherance of his constitutional right to earn a

livelihood. The conditions of his bail are the most severe that I have ever encountered.

The necessity to “sign on” at a garda station twice daily is a constant reminder of the

proceedings, is difficult to reconcile the exigencies of a normal job and a major

constraint on normal family life.

72. Finally, it is conceded that the evidence at any third trial will be the same as the

previous two trials.

73. I consider, for the reasons given above, that the case for granting the relief sought by

Mr. Niall Byrne is a fortiorari from the decision in DS.

74. It appears to me that the verdict of the jury at the first trial is a highly discriminating

one. That jury obviously had no difficulty with conviction as a thing in itself, given that

they convicted three of the five defendants. The learned trial judge commented that the

case against Niall Byrne, though sufficient to get past the direction stage, was the

weakest of those before the Court. A second jury after another lengthy trial also

disagreed. The proposal of the prosecution is to have a third trial on the same evidence

and I consider this an oppressive procedure, especially having regard to what has

befallen Mr. Byrne over the last ten years.

75. There is some reason to believe that the prosecution had not fully thought out its case

for charging Mr. Byrne in the first place. I have never known a criminal trial where the

statements of proposed evidence of witnesses and the exhibits, were augmented by a

total of eighteen notices of additional evidence. Of these, five were served after the first

trial had concluded. One must bear in mind that the prosecution’s proofs must have been

advised well in advance of the first trial. One can only say that the prosecution case was

augmented to an extraordinary degree prior to the first trial, during the first trial and prior

to the second trial.

76. Counsel for the Director of Public Prosecutions was unable to refer us to any case

where a third trial has taken place after two full trials which proceeded to a conclusion.

If there were any precedent for this, the Director is in a unique position to provide it, for

the reasons set out above. In my view, if there is to be a third trial something in the

nature of “unusual or exceptional circumstances” in the words of Kearns J., must be

demonstrated. In my opinion, the statement of opposition in Mr. Niall Byrne’s case

makes no attempt to do so.

77. I would accordingly dismiss the appeal in the case of Mr. Niall Byrne and uphold the

order of the learned High Court Judge. In the case of Mr. David Byrne I would dismiss

the appeal for the reasons given by the learned High Court judge in refusing relief to this

applicant.