Supreme Court of Ireland Decisions

“Approximately five years later, on 26th October, 2010, the [appellant] was charged with five offences of receiving corrupt payments from Frank Dunlop in June 1992, October 1997 and December 1997 in relation to zoning of lands at Carrickmines contrary to s. 1 of the Public Bodies Corrupt Practices Act 1889, as amended. The Book of Evidence included the statements of Frank Dunlop on 16th March 2004, and 24th September, 2004. The Book of Evidence contained no further evidence additional to what was in the possession of the authorities when a file was sent to the DPP in October 2004.

6.2 The [appellant] submits that considering the deficiencies in disclosure and the passage of time, his continued prosecution amounts to an abuse of process and is in breach of his legitimate expectations. It seems to me that there are two distinct aspects to the [appellant’s] case. First, the issue of non-disclosure, and second, the issue of legitimate expectation. I propose to deal with each of these issues in turn. It is common case between the parties that two statements made by Frank Dunlop were not disclosed. The second of the statements that was made on 24th September 2004, was a draft statement, therefore, there was no obligation to disclose it. The first statement was made on 16th March, 2004. In this statement, Frank Dunlop alleged that the payments, which are the subject matter of these proceedings, were corrupt payments. The [appellant] submits that if this statement was disclosed, he would have been put on notice that he was likely to face further proceedings, and as a result, may not have pleaded guilty to the Electoral Act offence. The consequences of entering this plea are that the [appellant] is now effectively precluded from arguing that he received no monies.

6.3 In adjudicating upon this submission, it seems to me that it is necessary to consider the context in which disclosure was sought by the [appellant’s] solicitors. On 27th April 2005, the [appellant’s] solicitors, Garrett Sheehan & Partners, were seeking disclosure in order to deal with an offence under the Electoral Act. The charge the [appellant] was facing was of knowingly making false or misleading declarations in relation to donations exceeding £500 in value received between May and December of 1997. The statement made by Frank Dunlop on 16th March, 2004, was not relevant as the [appellant] was not facing corruption charges. I am therefore not satisfied that this statement was disclosable at that time. The fact that the obligation to disclose is ongoing is also not relevant since at the time when the [appellant’s] criminal case was heard and concluded, the same situation pertained.

6.4 I will now turn to the [appellant’s] arguments based on legitimate expectation. In Glencar Exploration plc v. Mayo County Council. [2002] 1 ILRM 481, it was held that to succeed in a claim based on legitimate expectation, it was necessary to establish three matters. Fennelly J. held at paragraph 168:-


‘Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed, either directly or indirectly, to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.’

The [appellant] seeks to argue that the non-disclosure of the statement in 2005 amounted to a representation that further charges would not be made against the [appellant]. This failure cannot, in my view, amount to the adoption of a position, a promise or a representation. The statement that was not disclosed in 2005 was not going to be used against the [appellant] in his trial at that time because it was not necessary to prove the case against him. It seems to me that to suggest that this non-disclosure amounted to a representation would be to stretch the meaning of Glencar far beyond its true meaning.

6.5 While the statement of 16th March 2004, was not disclosed to the [appellant] prior to his trial in 2005, it is, nevertheless, clear that he was well aware of the allegations contained therein. In the interview on 3rd March, 2004, all of the matters referred to in the statement of 16th March, 2004, were put to the [appellant]. In the memorandum of the interview contained at Tab 5, the [appellant] answers one of the questions put to him by the gardaí in the following terms:-

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

Thus, it is not sustainable for the [appellant] to argue that he was unaware that the gardaí were investigating matters of corruption and had he known that they were he might not have pleaded guilty to the Electoral Act Offence. Moreover, there is a considerable difference between failing to disclose a donation, on the one hand, and corruptly receiving a payment, on the other. While the former offence may simply involve inadvertently failing to disclose a bona fide donation, the latter offence clearly involves dishonesty and is a much more serious offence, as reflected by the more severe penalties provided for in the legislation. The Electoral Act 1997 offences on which the [appellant] was prosecuted in 2005, carry a penalty of up to three years imprisonment and/or a fine of up to £20,000. The charges that the [appellant] now faces under the Public Bodies Corrupt Practices Act 1889, as amended, carry penalties of up to seven years imprisonment and/or fines of up to £50,000. The [appellant] knew that the gardaí were investigating serious charges of corruption. In these circumstances, it is difficult to understand how the [appellant] could have reasonably believed that a plea in respect of the Electoral Act charges would conclude all criminal proceedings against him concerning all the allegations made by Frank Dunlop. To obtain such immunity would be highly unusual. The very least one would expect would have been some formal communication of that fact from the prosecuting authorities. In Glencar, it was held that in order to succeed in a claim based on legitimate expectation, the first element required is a representation. Such representation must be of a nature as to create an expectation reasonably entertained by the person that the public authority will abide by the representation. No such representation was made herein.

6.7 [sic] In relation to the [appellant’s] complaint of delay, the respondents have argued that significant delay was caused by the necessity that Frank Dunlop would give evidence in the case against the [appellant]. This case could therefore not proceed until the Tribunal had concluded its work. It seems to me that had there been an attempt to initiate proceedings while the Tribunal was still sitting, this would have resulted in an application to the High Court on the basis that the accused would be prejudiced by the continuance of the Tribunal. This is the unfortunate consequence of the establishment and continuance of the tribunal of inquiry into the matters in question. Whilst this may well not be in accordance with Ireland’s obligations under Article 6 of the European Convention on Human Rights, that would not, of itself, require the prohibition of the trial. In the context of Irish law, it seems to me that the delay occasioned thereby was an excusable reason for inordinate delay. It cannot therefore give rise to an order of prohibition.

6.8 The [appellant] bears the name of a family who have given service of the highest distinction to this country. I can well accept that the decision to plead in 2005 was a very difficult one for him and his family. I can accept that it must have taken some measure of moral courage to do so. He may well have held the honest belief that this was the end of matters. This, however, was not in my view, absent some clear indication from the DPP, a reasonable belief for either him or his advisers to hold, nor was it nor could it be such that could constitute a representation.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The effect of the Act of 1974, was thus to vest in the [DPP] the function of prosecuting all crimes and offences, in courts other than those of summary jurisdiction, in the name of the people. It was clearly envisaged by the Oireachtas that the [DPP] in performing those functions, would exercise the same role as had historically been performed by the Attorney General. In contrast to the systems in many civil law jurisdictions, the courts play no role in the prosecution of offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions exclusively assigned (with limited exceptions) to the [DPP] under the Constitution and the relevant statutory provisions.”

“Undoubtedly, the [DPP] remains subject to the Constitution and the law in the exercise of his functions and it has been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to a greater extent than is normally the case with quasi-judicial tribunals properly so described, he will be restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.”

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

“If, of course, it can be demonstrated that he reached a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of the [DPP] that his decisions were not as a matter of public policy ever reviewable by a court.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“We understand from that conversation that as Chief Bureau Officer you would like to meet personally with the individuals who are alleged to have received money from Frank Dunlop to assist you in forming your own opinion of the evidence gathered during the course of the investigation in relation to the re-zoning of lands in Carrickmines, Co. Dublin.

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

“I would not propose that Mr. Cosgrave be cautioned for the interview which I wish to have with him. Broadly, although it is not impossible that the interview might broaden its scope, I would like to focus on ascertaining Mr. Cosgrave’s understanding at the time he received payments, and at the time he took various steps in relation to the rezonings, of why he was receiving payments or taking those steps.”

“It appears to me that the second paragraph of your letter of the 14th of December 2004 does open the suggestion that Mr. Cosgrave received payments and took various steps on foot of payments in relation to the rezoning of lands in Carrickmines.

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

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

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

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

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

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

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

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

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

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

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

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

“Count No. 1

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

“Count No. 2

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

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

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

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

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

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

”there is a considerable difference between failing to disclose a donation on the one hand and corruptly receiving a payment on the other. While the former offence may simply involve inadvertently failing to disclose a bona fide donation the latter offence clearly involves dishonesty and is a much more serious offence as reflected by the more severe penalties provided for in the legislation.”

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

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

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

‘But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.’

‘the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal …. the courts should apply to such cases an avowed judicial discretion …’

‘the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer …. there must always be a residual discretion to prevent anything which savours of abuse of process.’”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“I never received a corrupt payment from Frank Dunlop.”
Thus, the appellant was aware of corruption allegations against him, although he did not know of written statements alleging corruption.

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

(i) At the time the first, or “donation statement”, charges came before the Circuit Court, the gardaí were already in possession of the evidential material which is the basis of the second “corruption” charges which were eventually preferred against Mr. Cosgrave in 2010. There can be no dispute about this fact because, at para. 3.6 of his judgment, the learned High Court Judge held as follows:
“The [2010] Book of Evidence contains no further evidence additional to what was in the possession of the investigating and prosecuting authorities when a file was sent to the D.P.P. in October 2004 and when the applicant was prosecuted in 2005”.

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

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

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

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

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

Accordingly, as far as the Statement of Evidence in the 2005 proceedings is concerned, it shows a 100% overlap between the payments alleged, in the 2010 charges, to be corrupt payments and the payments described in Mr. Dunlop’s statement in the Book of Evidence for the 2005 proceedings. If, instead of comparing the Statement of Evidence in the 2005 proceedings with the charges in the 2010 proceedings, one compares the earlier and the later charges, an almost equally striking situation results.

“On the facts, as stated here, a complaint for a common assault was preferred before two Justices of the Peace who adjudicated upon it. In respect to this very same assault this indictment is now preferred, and to that these pleas are pleaded…. we must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred and, whether a party charged of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form”.

“In our judgment there being, as we have indicated, no special circumstances in the present case, it is one where the general rule should have prevailed. A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions and gave rise to a prosecution for an offence of greater gravity, no new facts having occurred, in breach of the principle of R. v. Elrington”.

“… the whole of the power on which the Court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal… the Court should apply to such cases an avowed judicial discretion”.

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

“… I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and of the judication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject matter of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

“The purpose of the rule is to uphold an important principle of public policy which demands, in the interest of justice, that the defendants are not exposed to successive suits where one would do”.

“… at least as important as the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson that, in the absence of special circumstances, parties should bring their whole case before the Court so that all aspect of it may be decided (subject to appeal) once and for all is a rule of public policy based on the desirability in the general interest as well as that of the parties themselves, that litigation should not drag on forever, and that a defendant should not be oppressed by successive suits where one would do”.

“No reason has been advanced, and none appears on the evidence, as to why these points could not have been raised two years previously. The applicant’s financial position had not worsened in the interval, he was impecunious at all material times. He had first raised the question of legal aid less than a month before the institution of the present proceedings, and no reason has been advance for not raising it earlier. The information he received in reply… cannot have come as a surprise to any lawyer or doctor and no case has been made to the contrary. The issues in relation to legal aid are, therefore, to adapt the language of Henderson and Henderson, issues ‘which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time’ of the first proceedings. In the language of Johnson v. Gore Wood and Company [2002] 2 AC 1, they are issues which might ‘sensibly’ have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy ‘based on the desirability, in the general interests as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits where one would do’.”

“As a matter of domestic law there does not, therefore, it seems to me, appear to be any reason why the rule in Henderson v. Henderson should not apply with at least equal force in relation to judicial review proceedings. Such proceedings involve the exercise of public or quasi public bodies of a public law role. There were almost invariably be similar considerations to those identified by Hardiman J., in respect of the Medical Council, which mandate that that public role be carried out in an expeditious way in the interest of the public generally and those persons whose rights and obligations may fall to be governed by the public body concerned. It seems to me that the principles apply with equal force, if not greater, in relation to the planning process.”

“It is further submitted that the Henderson v. Henderson principle applies to civil law and has nothing to do with the pleas in Bar that exist in criminal law”.

“Traditionally Henderson v. Henderson has applied to civil law only and in this jurisdiction has not been applied in criminal cases…”.

“… even if one were to apply the rule in Henderson v. Henderson its application is:

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

“… it’s simply not the case that the within prosecution could have been brought at the same time as the Electoral Acts prosecution”.

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

“The D.P.P. accepts that the fact that a statement is in draft form does not make what would otherwise be a disclosable statement non-disclosable. However it is submitted that the focus of this appeal is not on the scope of disclosure in criminal cases.”

“We do not think that in the case of a rule of caution concerned with the credit of accomplice witnesses and the weight of their uncorroborated evidence, a narrow or precise definition of ‘accomplice’ should be or indeed can be laid down”.

“[A person] who is chargeable, in relation to the same events as those founding the charge against the accused with an offence (whether the same offence or not)…”.

“In Victoria, by virtue, I have ventured to think, of the retention of some at least of that good sense which informed the comments of Joy C.B., and by virtue also, perhaps, of the fact that the early practice, procedure, and traditions of the Courts of this State were much influenced by Irish lawyers who came to the colony, we have declined to go so far.” [So far, that is, as the English Courts have].

“The rule is that that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it be corroborated…”.

“… because he [the accomplice] stands in so degraded a state, from the crimes of which he confesses himself guilty, that but little credit is due to him… unless corroborated in some material circumstances”.

“… accomplices are already morally culpable, so that they are more likely to lie and deceive the Court…”.

“The Rule of Practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal.”

“Such reasoning would seem to be equally applicable whether a witness who has taken part in activities which infringe the law is chargeable in connection therewith with the same offence as the accused, either as principal or as accessory, or with a different and distinct offence.”