10
THE COURT OF CRIMINAL APPEAL [CCA No: 89 - 96/10]
Hardiman J.
Moriarty J.
Hogan J.
Between/
The People (at the suit of the Director of Public Prosecutions)
Appellant and
Bourke Waste Removal Limited,
Stanley Bourke,
McGrath Industrial Waste Limited,
Patrick McGrath,
Declan McGrath,
Wheeley Environmental Refuse Services Limited,
Paul Francis Gleeson,
Padraig Hughes Respondents
JUDGMENT of the Court delivered the 24th day of May 2012 by Mr. Justice Hardiman
This is an appeal brought by the Director of Public Prosecutions pursuant to s. 24 of the Criminal Justice Act 2006 against orders for costs, granted in favour of each of the named Respondents, following their acquittals on all counts of the indictment preferred against them at their Central Criminal Court trial on competition-related offences before McKechnie J. and a jury. The several respondents were sent forward for trial on 4th December, 2008, the verdicts of acquittal were returned by the Jury on 2nd July, 2009, and, following the furnishing of Affidavits and submissions in relation to the Respondents’ applications for costs, the learned Trial Judge, in a detailed reserved judgment of 12th March, 2010, made the awards of costs to each of them that have given rise to this Appeal.
By its nature, an appeal of this kind is an exception to the long established practice of the Court of Criminal Appeal’s jurisdiction arising only upon convictions at trial Courts, whether by Jury verdicts or guilty pleas. The Court is empowered by virtue of s.24 of the Criminal Justice Act, 2006 to entertain such appeals as this section provides that, where a person tried on indictment is acquitted, the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an order for costs made by the trial Court against the prosecution. Given the relatively recent provenance of that Statute, the number of recorded appeals brought under the section to date is understandably sparse.
The precise nature of the matters complained of against the respondents at the trial does not require to be detailed, but its gravamen was to the effect that the corporate Respondents had unlawfully agreed together on a basis which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in Co. Mayo, by sharing the available market and its customers, and that the named individuals had, as directors or other principals, authorised or consented to the acts constituting entry into such agreements.
Both before the Trial Judge, and in the written and oral submissions made to this Court, there was a considerable measure of agreement as to the legal principles applicable. In particular, it is beyond doubt that The People (Attorney General) –v- Bell [1969] IR 24 crucially changed what Walsh J. in his judgment referred to as “the centuries-old rule, that an accused person who is acquitted at a trial on indictment was not entitled to any costs of the trial.” In both the Supreme Court judgment, and the judgment of Kenny J. in the High Court which it upheld, detailed analysis of historical Crown Prerogative and succeeding legislative provisions was set forth, but what was in essence found was that the 1962 Rules of the Superior Courts, in referring at Rule 1(1) of Part 1 of Order 99 to “...costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts, respectively” were deemed not merely to apply to High Court civil proceedings, but also to prosecutions brought in the Central Criminal Court as the criminal arm of the High Court. However, it was also found by the High Court, and upheld on appeal, that the succeeding sub-Rules (3) and (4) were not applicable to criminal proceedings. Sub-Rule (3) provided that the “costs of every action, question, or issue tried by a Jury shall follow the event unless the Court, for special cause, to be mentioned in the Order, shall otherwise direct.” The succeeding sub-Rule (4) provided that “costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.” Accordingly, with like Rules of Court incorporated into the succeeding 1986 Rules of the Superior Courts, it is not in issue that the Central Criminal Court enjoys a discretion in adjudicating upon costs applications made by acquitted Defendants, but that the exercise of that discretion is not coupled with any specific presumption under the Rules that costs should follow the event, or in effect accord with an outcome of acquittal. It is in regard to the factors that should primarily weigh upon the exercise of that discretion, and its exercise in the instant case, that the present appeal was argued.
Not long after the enactment of the legislation which enabled the Applicant’s appeal against costs, a helpful Judgment was provided by Charleton J. in the case of Director of Public Prosecutions –v- Anthony Kelly [2007] IEHC 450. This followed upon the accused’s acquittal on a charge of murder in the Central Criminal Court, following which he applied for costs against the prosecution. In his reasoned and detailed judgment, Charleton J. ultimately declined to accede to the application, finding that no impropriety or unfairness had been visited upon the defendant at any stage of the proceedings by the prosecution, and that the defendant had contributed to drawing suspicion upon himself, through his degree of association with a known and notorious criminal. The judgment also set forth, on a basis not intended to be definitive, a list of some ten questions that might be borne in mind by Trial Judges in considering such costs applications. It has to be said, and was conceded by both applicant and respondents in the present case, that the inevitable differences in the Central Criminal Court between a murder trial and one for Competition-related offences, not least extending to the substantial involvement of the Competition Authority in the latter, necessarily mean that by no means all of the matters postulated by Charleton J. arise in the present instance. Indeed the Trial Judge in his ruling on costs expressly referred to these questions, albeit in a somewhat more abridged fashion. Further, in a more recent Central Criminal Court judgment upon a similar application, but one in the specific sphere of Competition-related offences, Cooke J., in Director of Public Prosecutions –v- McNicholas, Dixon and Anor (20th December, 2011) took the view that many of the questions formulated were inapplicable to this type of prosecution, and based his finding in part on his view of the protracted nature of the proceedings overall. This decision will be returned to at a later point, but for purposes of enumerating appropriate criteria to guide judicial discretion in a manner that is in no sense definitive, and which does not seek to do violence to the more detailed criteria of Charleton J., the following four abridged questions may merit consideration in applications following Central Criminal Court acquittals in trials of this particular nature:
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?
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?
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?
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?
A further recent case of some assistance, albeit in the sphere of a judicial review application on costs to the High Court, is F. –v- Judge Murphy [2009] IEHC 497. This was a child pornography prosecution brought against the applicant in the Dublin Circuit Criminal Court, which concluded in late December, 2004, when the trial judge, Her Honour Judge Murphy, directed the jury to acquit F. F. subsequently applied for costs of the trial, which were refused by the Trial Judge, following which F. commenced judicial review proceedings. An initial High Court ruling determined that the matter should be remitted to the Trial Judge for further consideration in the context of her reasons given for refusing costs, and whether or not her decision had been unreasonable or irrational. She reiterated her ruling in some detail, referring to the criteria set forth by Charleton J. as aforesaid, and stating that the exercise of her discretion not to award costs had been because she viewed the prosecution as one properly brought, based in part upon F’s own admission to accessing child pornography on a different date, and the insupportability of his assertions that he had put the prosecution on notice of the flaw in the case that led to the direction. At the ensuing substantive hearing, Hedigan J. refused F. the relief sought in relation to costs. At page 19 of his judgment, the learned Trial Judge stated as follows:
“With regard to the three reasons identified by the first-named Respondent in refusing the applicant his costs, I am satisfied that these are factors which properly arose for consideration in the exercise of her discretion (Director of Public Prosecutions –v- Kelly [2007] IEHC 450), nor can her conclusion be said to be unreasonable in light of these three factors. She was entitled to take into account the previous admissions of the accused, the nature of the acquittal, evidence which had been ruled admissible, and her finding that the prosecution had been properly brought and maintained. In exercising her discretion, the first-named Respondent had the considerable advantage of having been the Trial Judge in the proceedings, and was best placed to determine the application for costs. Her finding that the direction given by her in the trial was given on technical grounds is parsed far too closely by the Applicant in these proceedings. Whether she characterised the nature of the direction as technical, or due to an inherent flaw in the technical evidence, or indeed as a matter of both, is again something that I consider within her jurisdiction. Nobody could be better placed than the Trial Judge to make such an assessment.”
In the written submissions of the applicant, reference is made to a passage in this Judgment immediately preceding the extract quoted, where Hedigan J. stated that “the rule that costs follow the event, while applicable, is of less weight in criminal cases, where the public interest in the prosecution of crime must be weighed in the balance.” That statement will of course not be neglected by this Court, but it is of some little surprise that the Applicant places reliance on that case in support of the proposition that Hedigan J. followed the precedent set by Charleton J. in Kelly, since what is undoubtedly the paramount factor in the decision of Hedigan J. was his finding that the Respondent carried out a balanced and rational evaluation of the material factors giving rise to her decision, and was best placed to do so. Moreover, it must not be overlooked in assessing the precedential status of this decision that F. involved an application for judicial review, so that, in order to succeed on this point, it would have been incumbent on the applicant to demonstrate that the Circuit Court judge had exercised her discretion unreasonably or in some ultra vires fashion.
Returning to the judgment of Cooke J. in Director of Public Prosecutions –v- McNicholas, Dixon and Anor, it is apparent that in that instance the Court took the view that less weight was to be attached to the fact of acquittal as a starting-point, and that the prosecution had been justifiably brought and fairly conducted, but that what was viewed as an excessive duration of the entire proceedings in the context of the matters complained of, occasioning additional degrees of expense and stress to the Defendants for which they were in no sense responsible, warranted the exercise of the Court’s discretion in awarding the defendants 50% of their costs. In summarising the principles considered applicable in exercising a discretion to award or refuse costs to a Defendant at the conclusion of a criminal trial, Cooke J. stated as follows:
“19. In practice, therefore, an application for an award of costs will only fall to be made by an acquitted accused. Therefore, however, the application for costs is entirely a matter for the discretion of the Court, and the exercise of that discretion will turn upon an appraisal of all the relevant factors arising in the particular circumstances of each case. In the Judgment of the Court, there is no basis for presuming that the applicant will have an entitlement to the award because there has been an acquittal; nor is there any basis for a presumption that costs ought not be awarded because it is a criminal case.”
In the written submissions furnished on behalf of the applicant, it was contended that, applying the criteria formulated by Charleton J. in the Kelly case, the prosecution was justifiably brought on apparently credible evidence, as had been shown by the refusal of a direction sought by the Respondents, that no fault could justifiably be found against the prosecution in its conduct at any stage of the proceedings, and that, as regards the conduct of the Respondents, each of them had exercised their entitlement not to testify on their own behalf. Some reliance was based upon the Supreme Court decision in Dillane –v- The Attorney General [1980] ILRM 167. In that case, the constitutionality of Rule 67 of the District Court Rules, 1948, was upheld, insofar as it empowered the District Court to award costs and expenses against any party to proceedings, but precluded such an award against any Garda officer acting in the discharge of police duties. Henchy J. rejected the argument that any unconstitutional discrimination was thereby disclosed, basing that finding by reference to the social functions of the members of the Garda Síochána when carrying out their duties as police officers.
Although not cited in submissions or argument on this matter, it is noteworthy that the Dillane case received very recent consideration in the Supreme Court in the case of Minister for Justice and Law Reform –v- Devine [2012] IESC 2. This was an appeal against the refusal of the High Court to exercise its discretion by excusing the Minister from furnishing an undertaken as to damages as a condition of awarding injunctive relief sought in certain proceedings governed by international treaty obligations. In dissenting from the majority judgment, O’Donnell J. placed appreciable reliance on Dillane in finding that such an undertaking should not have been required from the Minister, citing in further reference to the judgment of Henchy J. “the desirability that members of the Garda Siochána should be encouraged to discharge their police duties assiduously by being given immunity from liability for costs or witnesses expenses in the District Court....” However, in giving the majority judgment, Fennelly J., while not excluding the possibility that a Court on an ex parte hearing could have discretion to dispense with such an undertaking, affirmed the presumption that the undertaking should be required, as had been ordered in the High Court.
Before addressing the core issues arising in the appeal, brief mention may be made to two matters comprised in the applicant’s written submissions, neither of which appear to this Court particularly applicable or helpful. Firstly, it is suggested that the Trial Judge should have felt himself bound by what was decided by Charleton J. in the Kelly case as a precedent, and certain decisions in relation to the doctrine of stare decisis are cited. What is palpably clear is that a discretion was vested in each of the respective Trial Judges, just as it also was in Her Honour Judge Murphy in the F. case, and Cooke J. in the case of McNicholas and Ors, to be exercised in a principled fashion on the individual facts in each case. As it transpired, both Charleton J. and Judge Murphy (as upheld by the High Court) refused the costs application, Cooke J. allowed it in part and the Trial Judge in the present case allowed it in full. Whatever assistance in principle may be derived from preceding cases, it is untenable to suggest that those differing outcomes of the exercise of discretion should have been constrained by prior outcomes. Secondly, some implicit criticism is voiced of the Trial Judge in the context of the portion of his ruling on costs, when he stated;
“The entities charged were trading companies and successful businessmen, with Mr. Hughes being a retired Civil Servant. None of them were eligible for legal aid. Their defence, therefore, was privately funded, quite a rare occurrence in criminal law. Accordingly, any floodgate argument can be discounted.”
In suggesting that this assertion was unproven or speculative, it is not surprising that robust exception was taken in replying submissions submitted on behalf of the Respondents. This Court can take manifestly clear judicial notice that the vast preponderance of applications listed before it comprise matters that are funded by legal aid, a matter equally within the means of the knowledge of the applicant, and the articulation of that reality by the Trial Judge in no sense means that the outcome of this Application should be governed by extraneous factors or speculation.
At the conclusion of his argument on behalf of the Director Mr. McDermott SC accepted that the onus lay on the Director to prove that the Trial Judge had demonstrably erred in principle in concluding that the respondents were entitled to costs against the Director. It is true that another Court might reasonably have attributed less primacy to the facts of the acquittals than did the learned Trial Judge, as indeed did Cooke J., in noting the inapplicability of sub-Rules 3 and 4 as aforesaid. Yet, while not determinative of orders for costs following the event, as is the undoubted practice in all but the most exceptional instances of civil litigation, the outcome must nonetheless be viewed as a highly influential, if not the most influential, factor in adjudicating on an award of costs in a criminal trial. Undoubtedly, the matter would have been more clear-cut had the Trial Judge acceded to the applications for directed verdicts of not guilty made on behalf of each of the respondents.
However, the matter does not end there. What clearly emerges from consideration of the transcript of the trial is that, far from delivering a rushed ex tempore ruling on the costs applications, the course that the Trial Judge undertook was to receive oral and written submissions from both sides, defer the matter for full consideration, and then deliver a most detailed and painstaking reserved Judgment, referring fully to the Kelly case, and to all material factors considered by him in coming to his determination. Apart from his experience in Central Criminal Court Trials, the Trial Judge had particular proficiency and expertise in Competition Law, being at the time of the trial the designated Judge of the High Court dealing with Competition matters.
Naturally, the mere fact that the judgment was detailed and lengthy does not preclude it having been in error, but a reading of it makes clear now fully the pertinent factors arising on foot of the Kelly decision were considered. Indeed, a schedule was appended to the latter part of the judgment, setting forth in further detail the consideration afforded to certain pertinent factors. The first of these was the evidence of Mr. Michael Monaghan, a crucial witness in the trial, and a person in relation to whom the applicant has complained that he in effect failed to “swear up” in accordance with his statements. It was found in the judgment that he had been an honest and candid witness, who even though a competitor of at least one of the respondents had indicated a favourable view of the character of each of them, and in relation to whom it was not put by the prosecution that he had altered his views from those conveyed to the Competition Authority, still less had any application been made to treat him as hostile.
As to the refusal of the Trial Judge to direct verdicts of not guilty upon the applications made on behalf of the respondents, the Trial Judge pointed out that, following this ruling, the Trial had proceeded before the jury only on an appreciably more narrow basis than had been contended at the outset of the proceedings. As to the time taken for deliberation by the jury, in the context of an eight day Trial involving relatively technical matters, with eight accused and twenty counts on the Indictment, the Trial Judge noted that the total time taken for deliberation before returning the unanimous acquittals was approximately fifty minutes, but he was not disposed to attach undue weight to that factor in the context of his determination on costs.
The Trial Judge further considered the degree to which the respondents had co-operated with investigations, finding that, while they had exercised their entitlement not to testify at the Trial, as was their absolute right, they had in general terms co-operated fully with the investigation by the Competition Authority, providing all documentation required of them and, with the exception of Mr. Paul Francis Gleeson, making formal statements. As to the sufficiency of the preparations and investigations made by the Competition Authority and the Prosecution prior to Trial, the Trial Judge was inclined to damn with faint praise, finding that, as had appeared from the refusal to grant directions, these had not been “woefully inept”.
Both on the occasions of receiving oral submissions on costs, on 21st December, 2009, and on the occasion that the Trial Judge furnished his written Judgment on 12th March, 2010, the Trial Judge in exchanges with counsel conveyed views that accorded with his judgment. On the former occasion, at page 9 of the transcript, he intimated that the respondents might well have done the Competition Authority a favour in the case by their criticisms, so that they might in future adopt the criticisms voiced and carry out much more thorough investigations before actively participating in a prosecution by the Director of Public Prosecutions. On the latter occasion, the Trial Judge reiterated his view of the degree of co-operation afforded by the respondents, noting that all of them were respectable persons with no prior convictions, and had not been associating with persons in relation to whom any inference of guilt might have been justified. Additionally, in stating that the refusal of directions was not viewed by him as decisive in adjudicating upon costs, the Trial Judge noted that the refusal to direct an acquittal was made by the Court in circumstances where the case initially advanced by the Prosecution was potentially far broader than it in fact transpired to be. (pages 2 and 3 of transcript of 12th March, 2012).
The case of The People (Director of Public Prosecutions) –v- Hanley Pepper Limited and Michael Jackson is a relatively recent instance of consideration being given by the Court of Criminal Appeal to the discretionary exercise required of Trial Judges in evaluating applications for costs made by acquitted defendants. Giving the judgment of the Court in dismissing the appeal, McKechnie J., by then presiding, stated as follows:
“We are satisfied that in an appeal against a discretionary order made by a Trial Court an appellate Court should not interfere with the exercise of that discretion, unless it was satisfied that such exercise was substantially flawed, or was such as in the interest of justice ought to have the resulting order set aside.”
We in turn are satisfied that a similar view requires to be taken in this instance. It is clear that an informed and carefully exercised discretion was exercised by the Trial Judge, assessing all material factors in detail, and that even if an alternative view might have ascribed a somewhat lesser degree of weight to the mere fact of acquittals, that exercise can in no sense be viewed as one in which he erred in principle. The respondents faced the very real prospect of significant prison sentences if convicted, the various procedures prior and subsequent to the trial had extended over a significant period, so that the respondent had little option but to incur appreciable expense in meeting the complaints, and on the facts that have emerged it would be an injustice if they were not recompensed in this regard. Nor is the spectre, that a profusion of adverse costs orders following acquittals would have a “chilling effect on the mounting of complex white collar prosecutions” (page 6 of Applicant’s written submissions) warranted. Trial Courts, in addressing such applications, must seek to do justice between the parties, and balance the competing policy considerations of having suspected criminality pursued diligently and independently in the public interest, while in appropriate cases, in which the factors primarily addressed in this judgment have been carefully assessed, providing that acquitted persons do not suffer unfair consequential financial losses.
It is important to stress that the decision of the Supreme Court in Bell only concerned the question of jurisdiction and, as Walsh J., was anxious to emphasise, it was unnecessary as a result for the Court “to consider what are the principles which should guide a judge in making such an order”: see [1969] I.R 24, 52. Nevertheless, the consequence of Bell was to hold that Ord. 99, r.1 – with the exception of sub-rr. (3) and (4) – applies to criminal proceedings.
Sub-rules (3) and (4) are, however, of some importance in that they are the particular rules which prescribe that, so far as civil litigation is concerned, costs follow the event “unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.” Inasmuch as these rules do not apply to criminal proceedings, the real question, therefore, is how should this Court approach the question of costs in such proceedings, absent the specific and particular rules regarding costs following the event contained in sub-rr. (3) and (4)? Put another way, the effect of Bell was that the only applicable sub-rule regarding costs in criminal proceedings in the Central Criminal Court is sub-r. (1) which provides:-
“The costs of and incidental to every proceedings in the Superior Courts shall be in the discretion of those Courts respectively.”
While the discretion thereby conferred is wide, it must naturally be exercised in a judicial fashion. But the actual event must nevertheless be the starting point for the Court’s inquiry as to how the issue of costs should be resolved, even if the absence of sub-rs. (3) and (4) means that the Court’s discretion in that regard must of necessity be wider than would otherwise obtain in the case of civil proceedings by reason of the presence of sub-rr. (3) and (4). While we respectfully agree that the factors identified by Charleton J. in Kelly and by Cooke J. in McNicholas are highly relevant to the exercise of that discretion, we cannot agree that an acquittal is simply a neutral fact so far as the exercise of this discretion is concerned. Nor can we agree with the suggestion of Cooke J. in McNicholas to the effect that treating the acquittal as the starting point in any inquiry as to costs would have the effect of applying sub-r.(3) to criminal proceedings, the decision to the contrary in Bell notwithstanding. Ord. 99, r1(3) is the nature of a lex specialis which presumptively mandates the award of costs to the successful party. But if r.1(3) is disregarded, it does not follow that the event is a purely neutral factor which can be put to one side for costs purposes.
Approaching, therefore, the question of the interpretation of sub-r. (1) as if sub-r. (3) simply did not exist, we thus find ourselves obliged to acknowledge that the actual result of the prosecution is still the most important consideration regarding the award of costs. As the learned Trial Judge stressed in the present case, the acquittal of the accused is, accordingly, the starting point of any inquiry as to costs, to be considered in conjunction with other relevant circumstances, likely to relate primarily to the factors already enumerated by Charleton J. in Kelly and by Cooke J. in McNicholas. Naturally, these particular factors may also legitimately be considered where it is judged appropriate to do so by the Trial Judge.
Counsel for the prosecution, Mr. McDermott S.C., suggested that the effect of a ruling adverse to his argument might well be, as already indicated, to dissuade the initiation of criminal prosecutions in certain cases, a factor which, he submitted, would not be in the public interest. We would observe in response that costs in civil proceedings have been awarded against the State and State bodies since the foundation of the State in 1922, and the existence of this rule has not been thought to inhibit the proper discharge of statutory functions by these bodies. Moreover, the suggestion that the prosecution should enjoy some tacit immunity or quasi-immunity from costs has uncomfortable echoes of a long-distant prerogative immunity from costs previously enjoyed by the Crown and those suing on its behalf prior to 1922: see the comments of Kenny J. in Bell, [1967] I.R. 24, 29. If it were thought appropriate that the prosecution authorities should enjoy a special status so far as costs is concerned, this is a matter of policy which, we suggest, would be a matter for the Oireachtas (or, perhaps, the Superior Court Rules Committee) to consider. After all, as the decision of the Supreme Court in Dillane suggests with regard to Rule 67 of the District Court Rules, it would be open in principle for the Oireachtas to craft an appropriate exception in favour of the prosecuting authorities from the general application of Ord.99, r. 1(1). This, however, is a matter for the Oireachtas and not for this Court. Absent such a legislative intervention, the guiding principle is that the prosecuting authorities must be treated in principle in the same fashion as any other natural or legal person, enjoying no special rules or immunities so far as costs are concerned. This conclusion – suggesting parity of treatment for all litigants – is, after all, that which is most consistent with the majority of judgment of Fennelly J. in Devine.
Conclusions
We can now proceed to sum up our views on these various questions.
A. First, this Court will not interfere with the exercise of a discretionary judgment in relation to costs unless in the words of McKechnie J. in Hanley Pepper “it was satisfied that such exercise was substantially flawed, or was such as in the interest of justice ought to have the resulting Order set aside.”
B. While we agree that the discretionary factors mentioned by Charleton J. in Kelly and by Cooke J. in MacNicholas are highly relevant to the exercise of the court’s costs jurisdiction, we would respectfully not follow those decisions insofar as they suggest that the event is a purely neutral factor. We are rather of the view that the event is the starting point (albeit far from being the only relevant factor) of the court’s consideration of the issue of costs, save, of course, that the special presumption embodied in the lex specialis that is r. 1(3) has no application in the criminal sphere.
C. Since we are of the view that absolutely no error of principle has been identified in respect of the manner in which McKechnie J. deal with the issue of costs, we would accordingly dismiss this appeal by the Director of Public Prosecutions against that award of costs.
|
