Supreme Court allows third criminal retrial after two prior jury deadlocks in kidnapping and robbery cases.

An Chúirt Uachtarach

The Supreme Court

Record number: 2012/155JR

Appeal number: 405/2013

Denham CJ

Hardiman J

O’Donnell J

Dunne J

Charleton J

Between/

Niall Byrne

Applicant/Appellant

and

The Judges of the Dublin Circuit Court and the Director of Public Prosecutions

Respondents

Record number: 2012/186

Appeal number: 538/2013

Between/

David Byrne

Applicant/Respondent

and

The Judges of the Dublin Circuit Court and the Director of Public Prosecutions

Respondent/Appellant

Judgment of Mr Justice Charleton delivered on the 17th day of February 2015

1. At issue in this appeal is the extent to which an accused person may be tried again on a criminal charge when on prior occasions a

jury has failed to reach a verdict. Niall Byrne the applicant/appellant and David Byrne the applicant/respondent are listed for trial

together before the Dublin Circuit Criminal Court in the first term of 2015 on offences of kidnapping the wife and two children of an

employee of Securicor and of robbing that firm of a large sum of money. Were the trial to take place it would be, in respect of each of

these appeals, the third occasion when they would be tried. After two prior lengthy trials, juries were discharged deadlocked after

being unable to agree unanimously, or by a majority of at least 10, that the accused were either guilty or not guilty.

The offences

2. The essential issue at each trial has been whether the accused were proved to have been involved in that offence. This was

asserted on the basis of circumstantial evidence as there was no identification by the victims of their assailants. Violence and

degradation characterise the crimes that led to these prosecutions. There is no question that the victims of them are exaggerating or

that the offences did not take place. The question, rather, at trial has been whether the prosecution have proof beyond reasonable

doubt that Niall Byrne and David Byrne, two unrelated men of the same family name, were part of the criminal gang that committed

them. The main victim worked for Securicor in the transport of money for commercial purposes. As is well known, vans carrying money

are heavily armoured and on at least some of them a sign can be seen stating that valuables within are kept locked in a safe to which

employees have no access. Rather than outright robbery, therefore, intimidation has become an alternative method of theft from

security companies and banks. That is what happened here. On the evening of Sunday the 13th March 2005, a man working for the

security firm came home with his young son from ordinary family business and discovered on entering his home that his wife and other

boy were being held at gunpoint by this gang. As would be expected, they were disguised. He was kept in his home and the two small

boys and their mother were taken away at gunpoint. Overnight, and terrified as to their safety, he was told to follow particular orders

with obvious menace as to the consequences of disobedience. Arriving for work on that Monday, therefore, he followed his routine of

driving to work and clocking in as if in discharge of the normal duties of his life and employment. He followed instructions to drive a

van of which he had charge to a pre-arranged location. His fellow employees were made part of the duress under which he operated

through the gang photographing his imprisoned family under gun threat and which he, on orders, showed to them in earnest of his

predicament. On the van reaching its destination, it was stripped of its contents, amounting to some €2.23 million; a sum that has

never been recovered. The van driver had insisted prior to going in to work in speaking to his family, seeking an earnest of their

safety. The phone on which that call was made was coloured purple and the driver was able to ascertain their safety before setting

out as the puppet of the gang.

3. Meanwhile, the degradation of the dignity of these two children and their mother continued. They were held in the rear of a small

van overnight in a location that was probably somewhere in the Dublin mountains. On the following day, the criminals took the family

and tied them up deep inside a forest. They were left to fend for themselves without food, warmth or sanitation and terrified as to

the safety of the other imprisoned member of the family. Eventually they untied themselves and sought out help when they found a

public road. By this stage, the robbery had been completed. It would be totally unreasonable not to infer that considerable fortitude

will be needed by that family to leave these events in the past. Clearly, an offence of this kind must be ranked with the worst kind of

criminal conduct.

The trials

4. Thus far there have been two trials of the Niall Byrne and David Byrne. The first trial of Niall Byrne and David Byrne was together

with three other men before the Dublin Circuit Criminal Court. It commenced on the 20th of April 2009, having initially been listed for

the 12th of January of that year. It is a measure of its complexity that it lasted 65 days. Of the 5 accused in that trial, three were

convicted but the jury in respect of Niall Byrne and David Byrne failed to agree a verdict. After that first trial, apparently it was

thought that some time ought to be allowed to pass before a retrial should take place. It is difficult to know how fair and balanced

reporting of court proceedings should require this. It was not until the 1st of February that a retrial was scheduled. On grounds of

prejudicial publicity, Niall Byrne then sought a judicial review and was granted leave to initiate proceedings on 14 December 2009. In

those proceedings a declaration was sought that no retrial ought to take place before October 2010 at the earliest. In the event,

without that judicial review coming to a conclusion, a retrial date in respect of Niall Byrne and David Byrne was fixed for the 24th of

October 2011. Additional evidence was apparently served by the prosecution in relation to David Byrne somewhat too late to be fairly

considered in that trial, according to the ruling of the second trial judge. At this trial, the two men were tried alone and the case,

nonetheless, lasted 25 days at trial. When the jury did not agree, the Director of Public Prosecutions indicated a proposed third trial

date. This judicial review commenced by leave granted in the High Court on the 5th day of March 2012.

5. Other events were also taking place. By judgment of this Court in Damache v Director of Public Prosecutions [2012] IESC 11, on

the 23rd of February 2012, section 29 of the Offences Against the State Act 1939 was found incompatible with the Constitution in

permitting the issuing of search warrants by senior members of An Garda Síochána. Following that judgment, the three persons

convicted at the first trial had those convictions overturned; The People (DPP) v Kavanagh, Farrelly and Corcoran [2012] IECCA 65 of

the 24th of May 2012. There was then a retrial of those accused which started in the Dublin Circuit Criminal Court on the 7th of

October 2013 and this trial included a further co-accused who was joined in those proceedings in circumstances where that was his

first trial. That trial, not involving Niall Byrne and David Byrne, was also complex. It continued over 52 days and it resulted in the

conviction of one of the four accused, the acquittal of another and a jury disagreement on the remaining two. Meanwhile, this judicial

review was coming to trial. Hogan J heard the case over four days from the 14th of May 2013 and delivered his initial judgment on the

2nd of July 2013, with a revision approved two months later. That judgment was appealed to this Court by David Byrne, on Hogan J

refusing to prohibit a third trial in his case, and by the Director of Public Prosecutions against the ruling by Hogan J that a third trial

ought to be prohibited in the case of Niall Byrne.

The judgment of the High Court

6. Hogan J delivered his final judgement in this case on the 5th of September 2013; [2013] IEHC 396. The trial judge held after an

analysis of the relevant case law that “there is what amounts to a working presumption against permitting a third trial following two

successive jury disagreements.” Hogan J accepted, however, that there was no rule as such against a third trial, observing that much

would “depend on the circumstances of each case.” The balancing of competing interests, Hogan J held, would require “compelling

fresh evidence” as a factor which would enable a third trial after two prior jury disagreements. Notwithstanding the serious nature of

the crimes, the trial judge held that the absence of any fresh evidence in the application of Niall Byrne meant that any further trial

ought to be prohibited.

7. In relation to David Byrne, the trial judge refused to prohibit the prosecution from pursuing a third trial. At paragraph 33 of his

judgment, Hogan J stated:

I am left with the impression that at a third trial the prosecution may be able to tender new evidence against Mr. David

Byrne which, if the prosecution’s analysis were to be accepted (and I stress the conditional nature of this), is capable –

to adapt the words of Kennedy L.J. in Henworth - of constituting “highly persuasive evidence” against him. I express no

view on whether this is so or whether the prosecution ought to be able to establish this analysis before the jury. I would

merely say that the evidence is capable of having a highly persuasive effect and it is this single factor which persuades

me that, in contrast to the case of Niall Byrne, I should not grant an order restraining a third trial.

8. In relation to both applicants, Niall Byrne and David Byrne, Hogan J summarised his conclusions in paragraph 20, the conclusion of

his judgment, thus:

A. It is clear from cases such as the Supreme Court’s decision in DS that a third trial following two jury disagreements on

the merits is presumptively excluded unless there are special and unusual circumstances. This, however, is merely a

working hypothesis and is not a firm rule of law.

B. It is true that both applicants face very serious charges, a factor which in itself suggests that the public interest in

pursuing the matter to finality on a third trial is very strong. In the present case, however, the fact that the applicants

have already faced two lengthy trials culminating in jury disagreements is a factor which also pulls strongly in the opposite

direction.

C. The prospect that new and potentially highly persuasive evidence will be available on a re-trial is also a strong factor

suggesting that such a trial will be permitted.

D. As there is no new evidence against Niall Byrne, I consider that the fact that he has already faced two long trials

which culminated in jury disagreements is decisive in his favour. A newly empanelled jury would be in no better position to

arrive at a verdict than the two previously empanelled juries who could not arrive at a verdict and in these circumstances

it would be unfair to submit him to the ordeal of a third trial. Based, therefore, on the principles enunciated by Kearns J. in

DS, I would accordingly grant him an order of prohibition restraining his third trial.

E. Not without some hesitation, I have come to the opposite conclusion in the case of David Byrne for the sole reason

that there is a prospect that the prosecution will be able to introduce new (admittedly circumstantial) evidence which

may be of a highly persuasive character in a case which rests wholly on circumstantial evidence. It is this factor which, I

think, tips the balance against him and which constitutes an unusual factual circumstances within the meaning of DS

which points towards a re-trial. It is for this single reason that I would refuse to grant such relief in his case.

9. In the appeal by the Director of Public Prosecutions against the decision of Hogan J in the application of Niall Byrne, it is argued

that it is neither oppressive nor unfair to permit a third criminal trial to take place. It is contended that as between the two

competing interests, that of the applicant not to be subjected to a trial which is not in due course of law, and the entitlement of the

public to see that offences are prosecuted, the balance leans in favour of the right of the public to prosecute offences because, in

these particular circumstances there is no evidence that such a trial would not be fair. David Byrne, in his appeal, argues that Hogan

J was incorrect in law in distinguishing between his case and that of Niall Byrne solely on “the purported strength of additional

evidence now available … in any third trial.” It is minutely argued that this evidence is both unpersuasive and inadmissible. The

Director of Public Prosecutions rejoins that the decision of Hogan J in relation to David Byrne was correct.

Multiple trials

10. The first issue in this appeal is whether there is, as Hogan J stated, a working presumption against permitting a third trial of an

accused person on a criminal charge. This requires an analysis of the relevant decisions. In the decision of the Court of Appeal of

England and Wales to which reference was made in later Irish decisions, R v Henworth [2001] EWCA Crim 120, no such working

presumption is identified. Instead, at paragraph 18 references made to a convention before the courts of that jurisdiction is identified

by counsel for the defence that if two juries have disagreed when presented with substantially the same evidence “the prosecution

should only proceed against any given defendant if they consider that there are real prospect of obtaining a conviction from a jury.”

Reference was also made to the decision of the Privy Council in Charles v The State [2000] 1 WLR 348 at page 387 to the statement

of Lord Slynn that there was “a common practice, though not a rule of law, for the prosecution to offer no evidence were two juries

have disagreed”. At paragraphs 25 and 26 of the decision in Henworth, Kennedy LJ stated:

Where a serious crime has been committed and it is shown that there is a case to answer as far as the defendant is

concerned, there is a clear public interest in having a jury decide positively, one way or the other, whether the case is

established.

Having said that, we recognise the possibility that in any given case a time may come when it would be an abuse of

process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which

include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the

seriousness of the offence or offences under consideration; and, fourthly, possibly, the extent to which the case now to

be met has changed from that which was considered in previous trials.

11. In Michael McGealy v DPP [2007] IEHC 472 Ó Néill J considered whether a third trial should be prohibited in circumstances where

the applicant had, on the first trial, been convicted of all but two counts on the indictment and where the conviction was later

overturned by the Court of Criminal Appeal, and had on a second trial resulted in a jury disagreement. Ó Néill J stated that the

principal that he had identified in his own decision in DS v DPP (Unreported, High Court, Ó Néill J, 16 October 2006) was being

misstated in argument in that case. The prohibition of a criminal prosecution because of multiple prior trials of the matter, he said, of

balance:

The essence of the DS case is a balancing of two competing rights; the right of the applicant not to be subject to trial

which is not in due course of law and the rights of the public to prosecute offences. The core principle is that the public

have to have a fair opportunity to prosecute a criminal trial to its final conclusion. Mishaps can occur which may result in

a re-trial, for example, if a jury is discharged. Where the Director of Public Prosecutions in a case which has no mishaps

and which goes all the way, on two occasions to a jury, the balance tilts in favour of the applicant who may face risks.

Here, unlike DS, the applicant faces similar offences in relation to 2 other complainants. As of this point in time the

public’s right has not been fully vindicated yet. Cases similar to DS are rare where there are jury disagreements after two

satisfactory jury trials.

12. The case referred to was the subject of a leading decision by this Court as DS v The Judges of the Cork Circuit and the DPP

[2008] 4 IR 379 when it was appealed from the judgment of Ó Néill J. DS was a man who was charged with six counts of sexual

assault, occurring about a decade earlier according to the prosecution, on two pre-teen girls. On his own application, in the

indictment was severed so that the jury never knew the two girls were making similar applications. In respect of the first trial there

was some kind of reference in the evidence of the alleged victim which led to the jury being discharged. Four months later there was

a retrial and the accused was acquitted. Then the trial in respect of the second alleged victim took place four months later and the

jury was discharged by the trial judge as deadlocked. Eight months later there was another trial on those offences and it ended with

the jury acquitting the accused on one count but being unable to agree a verdict in respect of the remaining two counts. In all,

therefore, DS had had four juries sitting in respect of that series of six alleged offences. Partly, that was is own fault as he was

entitled to seek to sever the indictment but the result could not be later used as an argument for prohibiting trials which in

consequence were a multiple of what they otherwise could have been. The Supreme Court held that the issue of multiple trials was

not to be conflated with the principle against double jeopardy. There was, the Court held, no limit on the number of times a person

might be prosecuted but it was not for to lay down a concrete rule in that regard. On the issue of the number of trials that might

take place, Denham J, with whom Hardiman, Fennelly and Finnegan JJ agreed stated as follows at pages 387-388 of the report:

The Oireachtas has not legislated as to the number of times a person may be tried on an indictment. Consequently as

there is no statutory law on this issue, there is no statutory limit on the number of times a person may be prosecuted. A

decision is required to be made in each case, depending on all the circumstances, involving the exercise of a discretion. …

A rule limiting the number of trials to two would be a form of legislation, which may be done only by the Oireachtas. It is

not for a court of law to make such a rule. Consequently I would uphold the Director's ground of appeal that the learned

trial judge erred in limiting the number of trials which may be brought, which end in jury disagreements, to two trials. I

would respectfully disagree with the learned trial judge's conclusion that it was for the courts and not the Oireachtas to

strike that balance. Whether or not a third trial for the same offence is a trial contrary to Article 38(1) of the Constitution

is a matter to be determined in all the circumstances of the case.

13. At page 389, Denham J did not declare that there could not be more than two trials, or even that there was a presumption to

that effect but, rather, that “two full trials ending in disagreement may be a circumstance in which a further trial may not be

commenced, may be a sound basis from which to review all the circumstances.” This is a matter of balance. The basis for prohibiting

a third trial is not that, as Denham J stated at page 390, any “organ of state has set a limit on the number of trials which may be

prosecuted.” The concern of the courts, rather, is to ensure that any such trial is fair. Denham J made that clear in the following

passage from page 390:

The Court's duty is to protect due process. The test to be applied is whether there is real risk of an unfair trial. As Finlay

C.J. stated in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, at p.506:-

"This Court in the recent case of D. v. Director of Public Prosecutions 2 I.R. 465 unanimously laid down the general

principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground

that circumstances have occurred which would render it unfair is that he should establish that there is a real risk

that by reason of those circumstances … he could not obtain a fair trial."

In each case there should be a balance sought between competing public interests. While protecting the public interest in

prosecuting an accused, the integrity of the trial process also requires protection, guarding against the inherent dangers

of repeat trials. A third trial may not per se be a breach of a trial in due course of law. All the facts of each case require

to be considered.

14. From that, it is clear that an examination of the facts is critical. It can be important that there has been proven stress and

anxiety beyond what the normal course of a criminal trial entails. It can be important that there has been no change in the evidence

from what was offered at any prior trial or trials. As Denham J put the matter at page 395: “Each subsequent trial becomes more

oppressive and requires to be assessed objectively.” Her view was that what would be involved in the DS case, and what was

prohibited, was a fifth trial. Kearns J, with whom Fennelly and Finnegan JJ agreed, after analysing several American and English cases,

noted that in Attorney General v Kelly (No. 2) [1938] 1 IR 109 the Court of Criminal Appeal had clearly indicated that a jury which has

not come to a conclusion had not put an accused in jeopardy. The issue in that case was whether an order of retrial upon appeal

which results in a jury disagreement when the trial takes place constitutes the exhaustion of that order. Sullivan CJ stated that an

order or retrial “contemplates a proceeding in which the guilt or innocence of the accused is determined.” The court was clear that

there would be “no such determination when a jury is unable to agree on a verdict.” At p 114 of the report, he continued:

The word “re-trial” in its legal acceptation in such a context means, in the opinion of this Court, a complete and finished

trial, and “whent there is no verdict there has been in law no trial”: per Crompton J. in Conway and Lynch v the Queen 7

I.L.T.R. 149 at p. 179. It is established beyond question that when a jury in a criminal trial have failed to agree on a

verdict nad have been properly discharged, the accused may be put on trial again, and as often as may be necessary

until the question of his guilt or innocence is determined by a verdict.

15. That authority is cited in Ryan and Magee - The Irish Criminal Process (Dublin, 1983) page 432 for the proposition that an accused

may be re-tried “any number of times until a jury agree on a verdict”, though the authors add, it seems on the basis of experience or

research, that the prosecution will normally enter “a nolle prosequi after three disagreements.” While not citing that passage in the DS

case, at pages 412-413, Kearns J stated:

From the foregoing brief review of the legal position in a number of common law jurisdictions, including our own, I am

satisfied that the applicant in the present case can not invoke the principle of double jeopardy as the basis for seeking to

prohibit any further trial. He has never been convicted or acquitted of either of the two offences in respect of which a

retrial is proposed. There has been no jury determination in respect of either charge. The applicant is in continuing

jeopardy in relation to those offences.

However, as is apparent from both the authorities in the United States and in Britain, there must come a time in the

criminal process where repeated trials of a citizen may come to be seen as oppressive and as an abuse of discretion on

the part of the Director of Public Prosecutions. It may become an unfair procedure in itself to re-try. Put another way, a

“breaking point” may be reached where no further trial should be permitted if the fairness and due process requirements of

Article 38.1 of the Constitution and Article 6 of the Convention for the Protection of Human Rights and Fundamental

Freedoms are to be properly observed.

I do not think that there should be an over-simplified “one size fits all” approach to the question of how many criminal

trials for the same offence should be permitted. An oversimplified or stark black and white approach to the issue would, in

my view, be a mistake. As Kennedy L.J. pointed out in Henworth, jury disagreement may occur in unusual circumstances

and for unusual reasons which might suggest that a further trial should take place. Nevertheless I think that in the

ordinary course two trials which end in jury disagreement should be seen as an adequate discharge of the public’s interest

in the prosecution of crime unless there are unusual factual circumstances which suggest otherwise.

16. From these judgments it is clear that while there is no working presumption that a third trial ought to be prohibited, it is also

apparent that a point can come where further trials will be regarded as so oppressive as not to be in accordance with the

constitutional guarantee of a criminal trial in due course of law in Article 38.1. More recently in AP v The Director of Public

Prosecutions [2011] 1 IR 729, the issue of a fourth trial was considered again by this Court in the context of sexual offences on a

very young child. Three trials started but on each occasion the trial judge stopped the trial on the basis that what had been said by

the young girl was inadmissible and was prejudicial to the accused. Hardiman J at page 740 of the report was of the view that a

fourth trial would not necessarily be an abuse of process but “the circumstances which could justify a fourth trial, whether after

discharge or after disagreement, must be extremely rare and require to be fully established and explained by the [Director of Public

Prosecutions].” Fennelly J, at pages 747-748 emphasised the burden of proof on an applicant for prohibition in the context where he

had not shown any “particular element of unfairness”, no “evidence of stress or anxiety worthy of consideration” and no “evidence of

any likely distress over and above what would naturally and inevitably be accompanied by any trial process.” He continued:

The decision of the Court cannot depend simply on whether the Court agrees with the decision of the Director to proceed

to a further trial. The process of judicial review does not mean that the Court may substitute itself for the Director. It is

appropriate in a case such as the present is to enquire whether the appellant has discharged the burden which is upon

him to show that it would be a breach of his right to due process in the sense that it would be oppressive to put him on

trial for a fourth time. Bearing in mind that, unlike D.S., the trial of the appellant never reached the stage where the jury

was required to consider its verdict. On every occasion, the trial came to a halt during the evidence of the complainant.

The Court has at best incomplete evidence as to the precise reasons for the discharge of the jury and cannot pronounce

on the correctness or otherwise of the decisions of the trial judge. Ultimately, I do not believe that the appellant has

shown grounds for prohibiting his further trial. I would dismiss the appeal.

17. In analysing this difficult question, the focus has been both on the danger that an accused would be oppressed by continual trials

and on the growing danger that multiple trials will become unfair. The requirement that a criminal trial take place in “due course of

law”, as guaranteed by Article 38.1 of the Constitution, incorporates not only balance in procedures but also a fundamental guarantee

of fairness. In this context, while the rights of the community to see that serious crime is prosecuted are part of the balance together

with the fair vindication of the wrong done to victims, on the other side is the need to ensure that those who are accused of crime

and who are presumed to be innocent are not worn down by the same case being run again and again notwithstanding that having

been fairly tried previously, not jury can agree that the prosecution have proven their case beyond reasonable doubt. Our system

does not permit of an accused being exhausted into submission. That can amount to oppression. Nor does it permit of cases being run

with such public notoriety over and over again that public confidence in the impartiality of the jury system is shaken. That may

become unfair. Within the guarantee of a trial being in due course of law is the foundational requirement of every criminal conviction:

that it be safe, which in our jurisprudence is the unassailable principle that a conviction does not occur unless the proof carries the

certainty that the criminal standard demands. Multiple criminal trials can become an abuse of process. After a certain time, it may be

possible to reasonable speculate that since three juries have disagreed, it may be that since majority verdicts are carried by at least

10 out of 12 jurors, that 9 people hearing the same case, at least, were of the view that the prosecution case was too weak to lead

to a conclusion beyond reasonable doubt that the accused committed the crime. That consideration does not always arise where

there have been two jury disagreements. While our democratic system rests on consent, it also rests on such fundamental bedrocks

as the integrity of the system of pursuing those who are reasonably thought to have committed a serious crime. Totalitarian regimes

are inevitably characterised by a lack of integrity in the criminal justice system. A conviction in our system must carry confidence;

and absent extraordinary circumstances such as tampering with the jury, or the late discovery of seriously probative evidence, an

instance of which would a DNA linking the accused to the crime, three trials ending in disagreement are surely the limit to which the

prosecution may go. A situation where a jury convicted but that conviction was overturned and a retrial ordered by the Court of

Appeal or this Court is obviously different. In that instance, apart from the distinction that such a result is not a jury disagreement

after a full trial, there will have been a judicial determination that a retrial is to take place.

18. The second issue is to identify the circumstances whereby a third trial would not be the subject of an order of prohibition. At

page 387 of the report in DS, Denham J identified some of the factors which should be considered in any application for prohibition on

the basis of a multiplicity of trials:

First, there may be issues as to witnesses, their availability, and their statements. Secondly, there may be issues as to

an earlier prosecution. Thus, the stage at which a first trial was reached is important. Did it fail before the trial

commenced? Did it fail shortly after the trial commenced? Why? Was it due to the illness of jurors? Was something said

before a jury which should not have been? Was there a disagreement? Obviously a situation where a trial was stopped

early in the process, because of something such as the illness or absence of a juror, is entirely different to a situation

where there has been a full trial but the jury could not reach a decision. Each situation requires to be considered in all the

circumstances of the case. It is quintessentially a matter for the exercise of a discretion, and not for a hard and fast rule

as to the number of prosecutions which may be brought.

19. Kearns J in the DS case identified the following factors at page 413 of the report as important to the consideration of whether a

third or subsequent trial would be regarded as unfair:

1. The seriousness of the offence or offences under consideration.

2. The extent, if any, to which the applicant may himself have contributed to any mishap which led to the requirement for

a further trial. By way of example, the first trial of the applicant (in relation to the complainant TL) collapsed because of

defence error. It would be in my view inappropriate to accede to a defendant’s request for relief where the applicant

himself was the cause of the earlier trial mishap.

3. Any period of delay which is plainly excessive and beyond the norm for cases of the particular type and the reasons for

such delay. A court will necessarily take into account in this context the considerable delay likely to arise in mounting any

re-trial. It is now unusual to have a re-trial immediately after an aborted trial, such as occurred in years past, notably in

The State v McMullen [1925] 2 I.R. 9, where the re-trial took place two days after the first trial.

4. The extent to which the case now to be met has altered from that which was considered in previous trials.

20. In the AP case, Denham J returned to the possible criteria upon which a decision to proceed to a third, or as in that case a fourth,

trial might be possible. At page 735 of the report she stated that the “public interest in prosecuting an accused should be protected

but the integrity of the due process requirement requires protection also, guarding against the inherent dangers of repeated trials.”

Each case required an analysis of the competing public interest, she said, and she identified these factors as important:

In considering a case to determine whether a retrial would be constitutional, all the circumstances require to be

considered by a court. These may include many factors. For example, if the offences are serious (as they are here) that

is an important element; if there has been prosecutorial delay which had a prejudicial effect on an accused's situation,

that would be a factor; the length of time a case is in a legal system may be a relevant factor; and issues of stress and

anxiety may be raised, evidence given, and be relevant in the circumstances. However, none of these factors, or indeed

any others, fall to be considered in this case in light of the net issue before the Court.

21. In the most recent reflection of the basis for a retrial after two prior jury disagreements in the neighbouring kingdom, R v Bell

[2010] EWCA, the Court of Appeal (Criminal Division) considered that a conviction for murder after two previous jury disagreements on

substantially the same evidence was safe. Judge LCJ at paragraph 46 offered these observations in support of Judge Patience, the

trial judge, who had permitted the third trial to proceed:

We doubt the value of offering further guidance on the circumstances in which a second re-trial may be appropriate. We

shall confine ourselves to reminding the Crown that the jurisdiction which permits the second re-trial after two jury

disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the

administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small

number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred

(as here) and in which the evidence that the defendant committed the crime bracket again, as here), on any fair-minded

objective judgement remains very powerful.

22. In R v Flowers [2000] 1 WLR 2396, on appeal from Jamaica, the Privy Council did not overturn a conviction for murder and robbery

on a third trial after two prior jury disagreements. Rather, a non capital conviction was substituted on different grounds. The

discussion focused more on delay, which was found not to be such as to require upsetting the conviction.

23. In Canada, section 7 of the Canadian Charter of Rights provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice.

24. In that jurisdiction, prohibition of a criminal trial is, as in this jurisdiction, an exceptional remedy; R v Babos [2014] 1 SCR 300 and

see Moldaver J at paragraph 30-32. Debate as to multiple trials has focused on a third or fourth retrial after a jury disagreement. In R

v Keyowski [1988] 1 SCR 657, the Saskatchewan Court of Appeal had prohibited a third criminal trial of the accused on a charge of

criminal negligence causing death. Two previous juries had failed to agree on a verdict. On appeal to the Supreme Court of Canada, a

third jury trial was allowed to proceed. At paragraph 8842, Wilson J stated:

While I disagree with the majority of the Court of Appeal that prosecutorial misconduct must be demonstrated in order to

give rise to an abuse of process, I nevertheless agree with their conclusion that a new trial was properly ordered in this

case. The appellant has, in my view, failed to demonstrate that this is one of those "clearest of cases" which would

justify a stay. The charge is a serious one. The proceedings have not occupied an undue amount of time. The accused

has not been held in custody, and, while he has undoubtedly suffered substantial trauma and stigma from the proceedings

and the attendant publicity, he is probably not distinguishable in this respect from the vast majority of accused. A third

trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them. In these

circumstances and having regard to the seriousness of the charge, I think that the administration of justice is best served

by allowing the Crown to proceed with the new trial.

25. In R v Badgerow [2014] ONCA 272 the Court of Appeal for Ontario ordered a fourth trial where the accused had first been tried for

murder 20 years after the death of the victim. The delay was accounted for by the modern phenomenon of the development of DNA

evidence from samples that had been kept from the body of the victim from a time when no such analysis had been possible. In this

case, semen had been kept where the victim had been sexually violated and murdered. The first trial had resulted in a conviction, but

this had been overturned on appeal and a new trial had been ordered. The second trial, which took place in 2010, ended in the jury

being unable to agree a verdict. A third trial took place in 2011 and ended in the same way. There was then an application by the

defence to stay the proceedings. The trial judge ordered a stay but the Court of Appeal overturned that order. Relevant and highly

probative evidence had been excluded at all three trials. On an incorrect hearsay ground, overturned on appeal, testimony had been

excluded which was that an emergency call two days after the murder which gave details of the killing that were only likely to have

been known to the perpetrator had been traced to a payphone at the accused’s workplace. Because there had never been “a trial of

the respondent at which all the properly admissible evidence had been placed before the jury for its consideration” this meant that

the prosecution “never had an opportunity to try the respondent based on all the legally admissible evidence.” The approach of the

court was one of balance, holding that the public interest in such a trial “outweighs any unfairness in trying the respondent a fourth

time.” In permitting a third trial, among the factors which swayed the court of the seriousness of the charges and the consequent

community interest in having matters brought to finality. There had been an earlier observation in the Manitoba Court of Appeal in R v

Jack [1997] 2 SCR 334 at paragraph 11 by Scott CJM that “it would be a rare case indeed where putting an accused in jeopardy with

respect to a serious charge for the fourth time would not constitute a breach of s. 7 of the Charter and an abuse of process

sufficient to warrant a judicial stay of proceedings under s. 24(1) of the Charter.” At paragraph 202 and onwards, Strathy JA outlined

the balancing test which might in “exceptional and very rare” cases justify a stay. Essentially, where probative evidence had wrongly

been excluded at three earlier trials, the public interest justified a fourth trial.

26. In New Zealand, the leading authority R v Barlow [1996] 2 NZLR 116 was subsequently affirmed following a conviction on a third

trial; R v Barlow [1998] 2 NZLR 477. The defence application in the 1996 was for prohibition before the High Court. Two juries had

been discharged deadlocked. The High Court rejected arguments that a third trial ought to be prohibited on the basis of abuse of

process whereby the system of justice would be damaged by a third trial. This was notwithstanding prosecutorial guidelines to the

effect that the interests of justice were generally served by discontinuing a prosecution after a second jury disagreement. Similar

guidelines are published in this jurisdiction by the Director of Public Prosecutions. On a third trial, the accused was convicted. His

appeal was to the Court of Appeal which noted previous examples of a third trial. There had been no unfairness in the conviction

either by statute or under the New Zealand Bill of Rights Act 1990. On the guidelines, Henry J, giving the judgment of the court,

stated at page 479:

The guidelines do not and could not purport to control the exercise of the Court’s discretionary powers. Their only

relevance for present purposes is to indicate the general practice which is adopted by the Solicitor-General. It is also

relevant that he declined to exercise the power in this case. Comparable to New Zealand, it is common practice in

England for the prosecution to offer no evidence after a second disagreement (Archbold’s Criminal Pleading Evidence and

Practice (1995 Para 4-446). There is however no bar as such to a further trial. In Canada a third trial has been held not

itself to constitute an abuse of process (R v Keyowski [1988] 40 CCC (3d) 481)

27. As might reasonably be anticipated by anyone who has practised criminal, the repetition over three trials by witnesses of similar

evidence may bring disadvantages to the prosecution apart from the advantages argued for before this Court on behalf of Nial Byrne

and David Byrne. Advantages and disadvantages do not amount as such to necessary implications of such procedural unfairness that

a trial should be prohibited. Henry J considered that argument in the context of the fairness of the conviction on the third trial in

Barlow at page 479:

It was submitted that calling witnesses for the third time enabled defence arguments and fairly to be counteracted. That

aspect of a retrial must of course work to the possible advantage of the defence as well as to the possible advantage of

the Crown. A third trial may also well bring corresponding disadvantages to both sides. Furthermore the same complaint

could be made in relation to a proposed second trial and has no greater validity when raised in relation to a third trial. In

the present case Ms Cull cited only two examples of prejudice or unfairness. The first related to the evidence of Dr

Stowell’s examination of bloodstains. These did not disclose any link between the scene of the homicides and the

appellant. Under cross examination of the third trial, she elaborated for the first time in possible explanations for this

absence. The second example concerned the fingerprint expert Mr McColgan, and his reconstruction of how to fingerprint

is identified as the appellant’s could have been left on a pad found on the bedroom table at the scene. It was suggested

that the witness’s demonstration had left for visible prints on the paper, all of which the jury may have wrongly attributed

to the appellant when later viewing this exhibit. We can see no substance in either example. Neither can we discern any

other area of procedural or practical unfairness which has been occasioned by the fact that a third trial took place.

28. It follows from the foregoing analysis of the relevant authorities that central to whether there would be unfairness in trying an

accused a third time after two prior jury disagreements on substantially the same evidence is: how serious the crime under

prosecution was (some crimes such as murder and kidnapping and holding children at gunpoint are such as to weigh heavily on the

balance); whether the complexity of the case may explain how a jury has been unable to agree a verdict previously (provided the

prosecution has been presented reasonably, lengthy prior trials may be a factor which indicate an unusual degree of attention being

required from a jury); whether the evidence is on the face of it such that a reasonable prosecutor would regard the case are strong

(a case which is essentially a conflict of evidence between one or two prosecution witnesses and the accused is clearly much weaker

than a case which is built upon apparently reliable admissions or upon circumstantial evidence which appears on the face of it to be

inconsistent with any rational hypothesis based on innocence); whether there is evidence of oppression of an accused beyond what

might be expected in the course of a re-trial (averments of stress that are not backed up by medical examination or other provable

circumstances will be less weighty than objective evidence); whether the defence has contributed to jury disagreements through

unfair means.

29. Thirdly, and lastly, the role of the Director of Public Prosecutions in making such decisions should be respected. She will have a

full view of the background circumstances, what may have gone wrong with the trial or trials beforehand, and the issue as to whether

there remains a realistic prospect of conviction. While that view should be respected, it can also be demonstrated to be wrong. But

the burden of proof in that regard is on an applicant who seeks to challenge a decision to prosecute again to show that that decision

is wrong. As Denham J put the matter in DS at page 387:

The decision-making power to bring a prosecution on indictment lies with the Office of the Director of Public Prosecutions,

which is an independent office, established by statute. The decision to bring a prosecution depends on all the

circumstances of a case. In some situations it may not be appropriate to bring a prosecution in the first instance, or for a

second time, for good reasons. It requires an exercise of discretion on the matrix of facts. The circumstances will be

different in every case.

30. Similar comments were made by Denham J at page 735 of the report in AP on that issue. At page 413 of the report in DS, Kearns J

held that it was not necessary for an applicant for judicial review to show that the Director of Public Prosecutions had acted in bad

faith in initiating a prosecution. Rather, the issue was whether there would be basic unfairness in allowing such a prosecution to

proceed:

The case of Eviston v. Director of Public Prosecutions does, however, highlight that a court may invoke the concept of

fair procedures to halt a prosecution in particular circumstances[; [2002] 3 IR 360]. In Eviston, the Court intervened to

prohibit a prosecution in circumstances where the Director had decided - with ample grounds for doing so - not to

prosecute Mrs. Eviston in relation to a driving offence. He later changed his mind in circumstances where the family of the

deceased victim of the road accident in which Mrs. Eviston had been involved made representations by letter to the then

Minister for Justice. The Director reversed his original decision without having any new or additional evidence and having

already notified Mrs Eviston of his intention not to prosecute. Both the High Court and this Court had little difficulty in

acknowledging the basic unfairness of allowing a prosecution to be brought in such circumstances. As stated by Keane

C.J. at p.299:- “Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am

forced to the conclusion that in circumstances where the respondent candidly acknowledges that there was no new

evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to which, in all

the circumstances, she was entitled.” In Eviston the Court intervened to prevent an unfair procedure and that

intervention stopped the further prosecution of Ms. Eviston. While this Court did not characterise its intervention as one

to prevent an abuse of process, it is difficult to see what complaint there could have been if the judgment had been

based on abuse of process grounds.

31. As has been noted, in R v Barlow [1996] 2 NZLR 116, the New Zealand High Court indicated that the decision to retry a criminal

case after a jury was discharged deadlocked was a matter for the prosecuting law officer’s discretion. That should only be interfered

with in exceptional circumstances; see the judgment of the court at 120-121.

This case

32. Delay can be an important factor and while it is pleaded separately as a ground for prohibiting the trial, this factor is best

considered in this case as part of the balancing exercise as to whether prohibition should be granted or not. While a great deal of time

has passed since the original crime, and it will be 10 years should a third trial take place, much of the delay has been due to the

complexity of the investigation that the crime necessitated and the particularity of proof required to apparently demonstrate the

involvement, but the prosecution claim, of Niall Byrne and David Byrne. Delay has been occasioned as well by the judicial review taken

by Niall Byrne claiming an entitlement to have the entire Internet swept of any comment in relation to him; Byrne v DPP [2010] IEHC

383 (Charleton J, Unreported, High Court, 11 November 2010). The issue there was put thus in paragraph 1 and was never likely to

succeed:

The various declaratory reliefs sought by the applicant can be condensed to this: Niall Byrne wants the internet wiped

clean of any publicity or comment about the charges which he faces or the conduct of a previous trial where the jury

failed to agree a verdict against him or in his favour. He asserts that an accused person has the right to demand that the

Director of Public Prosecutions should search the internet in order to find any sites containing material that might be

regarded as prejudicial to the prospect of a fair trial. Thereafter, it is argued, the Director of Public Prosecutions should

write to the relevant internet service providers and demand that any offending material should be taken down. In the

event of non-compliance, an application should be made to court in that regard. The danger otherwise faced by the

applicant, it is argued, is that jury members will conduct their own researches during the course of the applicant’s

forthcoming trial, find some of the material complained of and reach conclusions prejudicial to the case he may be

asserting at the trial.

33. This judicial review coincided with another judicial review by Niall Byrne seeking a delay to ensure the publicity about the first trial

faded from public memory but the delay in taking the Internet judicial review brought more than sufficient lapse of time.

34. Then there is the issue of complexity; which can sometimes explain why juries have not agreed a verdict in prior trials. What the

prosecution need to prove is the interaction over the course of the kidnapping between 8 or 9 mobile telephones, what numbers were

called by what other numbers, whether to voicemail were to live conversation, at what particular times and from what particular

durations and being rooted through which telecommunications masts which might result in a correlation with other complex evidence

as to location from the inception of the crime, to the residence of the victims, to the place of their abduction and the place from

which they managed to free themselves on the completion of the crime. On any fair reckoning, that is a complex case. It would not

be correct for any court on appeal to characterise evidence as strong or to go beyond the application of a test that a reasonable

prosecutor might regard a case as strong enough to merit retrial. In contrast, were this a case of one person alleging an offence were

a fair opportunity had already been taken in simple circumstances of fact to test the strength of that allegation against countervailing

defence submissions or evidence, the result would be different.

35. The seriousness of the crime is central to any consideration as to whether a third jury trial ought to be permitted. In the AP case,

Denham J regarded the seriousness of the offences to be tried to be of considerable importance in adjudicating on where the balance

of justice lay after two trials. Kearns J was particularly influenced by the “scale of gravity” of the surviving charges in DS “as being at

the less serious end of the spectrum.” The trial judge in the High Court in this case noted the contrast between the gravity of the

facts in this crime with that under consideration in that case; nonetheless he prohibited the further trial of the applicant David Byrne.

This crime is of the grossest dimensions. Children were held and abducted at gunpoint, people were tied up in a forest on the

understanding of those who imprisoned them that ties which held them could eventually be undone but with no expectation and no

thought of care for their safety should that be a miscalculation. A loving husband and father was coerced into acting contrary to his

duty and instincts as a family man and as a loyal employee. Overall, an air of menace hung over the fate of each member of the

family that was made captive and subjected to armed duress. Would those involved in these offences, whoever they were, have killed

any member of this family? One cannot know but it is more than reasonable to infer that this had to be a worry for every one of the

victims. Considered in the round, there is little that is worse.

36. Hogan J differentiated the case of Niall Byrne, prohibiting that trial because there was no new evidence from the second trial,

from that of David Byrne in which there would be. That factor emerges as if it is necessary as a matter of law to have new evidence

after two juries have disagreed before a third trial could be permitted. The case law does not support any such decision. It would be

a mistake to regard the existing case law as requiring fresh and apparently credible evidence before a third trial following two prior

jury disagreements to be permitted. There is no authority for that. Instead, the availability of fresh evidence is merely part of the

balance. It is not, further, any part of the balance that emerges on the existing decisions as either being normally decisive or even

very important. It is not at the top of any judge’s list of criteria as to whether a third trial ought following two prior jury

disagreements should be prohibited.

37. It follows that the foregoing remarks as to the appropriate balance apply equally to Niall Byrne, in respect of which there is no

new evidence be offered at a third trial, and to David Byrne, in respect of whom some fresh evidence that had not been admitted at

the second trial will be offered by the prosecution. For the sake of completeness, the case against David Byrne is based on the use of

a purple mobile telephone which had been offered to the main victim of the crime when he insisted, while under captivity and with his

family abducted elsewhere, in discovering whether or not they remain safe before agreeing to act under coercion in relation to the

robbery. This purple phone is claimed by the prosecution to be associated with David Byrne. Apparently the case against him rests on

three possible pillars. Firstly, there is a prosecution witness, in respect of whom an accomplice warning had been given by the trial

judge in the two previous trials, who claims that he had rung David Byrne and talked to him while David Byrne was using the purple

phone. Secondly, the prosecution claim to rely on a video of a man who is said to look like David Byrne, noting the infirmity of

identification evidence as adumbrated by this Court in The People (Attorney General) v Casey (No 2) [1963] IR 33, and, thirdly and

lastly, some additional evidence which apparently was served late and ruled out by the trial judge in the second trial but which the

prosecution claim will make a substantial difference to the possibility of success in their endeavour. It is best to characterise that

evidence not in accordance with the affidavit testimony which has been put before this Court on appeal, but which has been

contested as to its accuracy by vigorous submissions, but by reference to what Hogan J stated in summary about it in the High Court

paragraph 46 and 47 of his judgement thus:

The new evidence consists mainly of an analysis of certain telecommunications records relating to what came to be

described as the “purple” mobile telephone. Evidence had already been given at the first and second trials that the purple

telephone had been used at a critical stage in the robbery and kidnap of the Richardson family. It was thus the telephone

which was used by the kidnappers at about 2.30 am in the early hours of 15th March 2005 to enable Ms. Richardson to

speak with her husband. Closed circuit television evidence from a Texaco filling station on the evening of the robbery

(allegedly) shows Mr. David Byrne purchasing credit for this mobile phone. Three separate mobile telephones were also

found in Mr. Byrne’s car - which was a taxi - which had been parked in the driveway of his house. These telephones were

given the designations DOC 1, DOC 2 and DOC 3 respectively at these earlier trials.

The new evidence on which the prosecution would now seek to rely at any further trial requires a subtle and painstaking

analysis of these telecommunications records with a view to showing that a (now deceased) person known to Mr. David

Byrne and with whom he was in contact during this period – namely, one Terence Dunleavy – telephoned the purple

mobile telephone on 14th March 2005. The prosecution will accordingly seek to invite the inference that the late Mr.

Dunleavy telephoned the purple telephone in the belief that by doing so he could speak to or otherwise contact Mr. David

Byrne, thus connecting him (i.e., Mr. Byrne) in a material way with the kidnap by reason of his possession of or his access

to that telephone.

38. It is best to leave the summary at that on this appeal. A court engaged in judicial must, from time to time, comment on contested

facts and thus must resolve such facts as are necessary for a decision. Hogan J was careful in avoiding straying into even ostensible-

fact-finding in respect of the contested criminal trials that are forthcoming. Similarly, on this appeal it has appeared bytimes as if the

Court were being asked to supplant the trial judge; asked effectively to deliver rulings on the admissibility of telephone evidence on

European law grounds and having contested aspects of evidence as to witnesses put up for apparent decision. The Court should not

do that. Those are matters for the trial judge; Byrne v Grey [1988] IR 31.

39. Were there to be a requirement for fresh evidence following two jury disagreements, how is it to be analysed? Whereas some

previous authorities considering the balance have required new evidence following two trials to be compelling or devastating or highly

persuasive, it seems that much of that language is simply rhetorical or was not necessary to the decision made. Nor is any such

language helpful. Evidence may reasonably be characterised as ostensibly credible and capable of adding significantly to the weight of

the prosecution case. If there is part of the balance for new evidence to be offered before a third trial should be allowed to take

place, then the foregoing would seem to be the rational test that should be applied. On the face of it, that evidence in relation to

David Byrne meets that test. In so stating, no comment can be made as to whether a jury will find such evidence credible, as to

whether it will break down in terms of proof or as to whether it would ultimately be regarded as a puff of smoke as opposed to

substantial evidence weighing heavily in the balance in terms of the case which the prosecution wished to make. No court on appeal

could have any such notion beyond the legal appearance of what fresh evidence might seem to offer and, expressly, no comment is

made as to its strength or weakness.

Focus of trial

40. A criminal trial must have focus. It is in no sense an exercise whereby allegations may be put to prosecution or defence witnesses

either without express instructions or where an apparent situation does not arise through reasonable inference from the evidence.

The building blocks of the prosecution case will be apparent from the book of evidence and will clarify over the course of the case as

to what is contested and as to what is important. From the point of view of the defence, it would appear that an error of approach

by defence counsel is becoming generally manifest in many trials. It was of considerable concern that on appeal this Court was told

that during the course of the first hearing, taking some 65 days in 2009, the main victim who had been held at gunpoint on returning

to his home and finding his wife and two small children already captive, had it suggested to him that he was complicit in this crime. On

the face of the facts, no such suggestion could be made. There was nothing in the prosecution case that could reasonably suggest

to any advocate whose client had given instructions of no involvement in the crimes that this central prosecution witness was in fact

part of a plot of kidnapping, firearms intimidation and abduction. Were such a suggestion to be floated, the result could have been a

follow-up step of suggesting to the trial judge that an accomplice warning to the jury ought to follow. The courts enquire into

allegations of criminal wrongdoing on the basis of adversarial contention by the prosecution and the defence. This does not leave

defence counsel at large. Central to their task is to ascertain in respect of each witness what case a client wishes to make as a

matter of fact; not as a matter of tactics or, worse, mischief. Should a client wish to allege that a person who happens to be a

prosecution witness was complicit in a crime with them, or that they are in possession of information suggesting this, then on such

specific instructions an unpleasant allegation may be put.

41. Absent such specific instructions, it is only if circumstances point on a rational basis to criminal complicity that counsel are

entitled to use their position to attempt to undermine a prosecution witness as an accomplice. Cross examination in a criminal trial is

not at large. The defence of those accused of crime, no more than the defence of those accused of a civil wrong, is not a matter of

fiction. No one would consider telling a client what his or her defence ought to be: that would be making up a story. Rather, the client

is the author of instructions and the advocate puts those instructions throughout the course of the trial. Confusion perhaps arises

due to the entitlement of an accused not to offer any defence case. That can arise in a civil case as well. For instance, an employer

is accused of negligence due to the action of an employee. Where the defence is that the employee was acting outside the scope of

employment, there is no need to put questions to any of the plaintiff’s witnesses. But if there is a point of fact to be contested on

the instructions of the client, that case should be put to the relevant witness: but, nothing more than that unless it arises reasonably

on the entirety of the case as it emerges in court and consistently with instructions. Cross-examination should be focused. If it is

not, then cases become unwieldy and more than difficult to try. A trial judge is entitled to, and is required to maintain, focus so that

irrelevant speculations do not sidetrack a case. Any court is entitled to expect that allegations put to witnesses, who are presumed

to be innocent and who have a right to their good name, arise from counsel doing their duty to put unpleasant matters on instruction

or from inferences that reasonably arise on the case consistent with those instructions. In The People (DPP) v Hawkin [2014] IECCA

36 at paragraph 14, the Court of Criminal Appeal clarified the scope of the duty of counsel on cross examination thus:

Certainly, it is the case that, if a client chooses, the prosecution case may simply be challenged as to the credibility of

witnesses without any positive case being put forward on behalf of an accused person. That, however, is not a course

which is generally taken. Such instructions are highly unusual. Here, the decision is with the client. Counsel appearing on

behalf of an accused is always acting on the instructions of the client. The task of counsel is neither to accept nor to

reject their client’s case but to put the case of the accused to witnesses as it is relevant to their testimony. Cross-

examination is not at large. It is directed to such elements of defence as counsel are instructed by their client.

42. It is unnecessary to add to that clarification beyond recording that the mistake to which these remarks are directed was not that

of counsel appearing on this appeal. Lack of focus in a prior trial may also be examined in the overall balance as to whether a further

retrial should be permitted.

Conclusion

43. While a decision by the Director of Public Prosecutions to order a third criminal trial after juries have failed to agree a verdict on

two prior occasions is at the extreme pole of prosecutorial discretion, it is not necessarily an abuse of process or an infringement of

the right of the accused to a trial in due course of law. With the availability of majority verdicts, of 10:2 or 11:1, not solving the issue

of whether an accused should be found guilty or not guilty on two prior occasions, the legal structure whereby a jury cannot reach a

verdict ordinarily requires that three or more jurors not concur in a verdict. A fourth retrial of a deadlocked case carries the risk with

repetition that the very high level of confidence that a guilty verdict carries in our system might be undermined. For that reason,

simple numbers indicate that with at least nine jurors required to disagree from a guilty verdict in three successive criminal trials

ending in a jury deadlock, that number of retrials, three, on jury disagreements ought to be the limit, absent extraordinary

circumstances. A trial and a retrial are, on their own and even without any evidence of a medical nature, stressful for an accused and

for the victims of the crime. Where cases involve relatively simple allegations by the prosecution and counter evidence or argument

by the defence, a jury can be expected to reach a verdict on either the first or second trial. The fact that a jury cannot do so,

absent particular difficulties that might arise during the course of the trial, indicates that two trials ending in disagreement have

shown up a lack of compelling strength in a prosecution case. The limit of prosecutorial discretion may therefore have ordinarily been

reached at that point. Where cases involve unusually grave crimes and an assembly of complex facts, a third trial remains possible

where two prior juries have disagreed. The case facing Niall Byrne and David Byrne meets the criteria identified in the case law for

permitting a third trial notwithstanding two prior jury disagreements and should not, therefore, be prohibited.

44. The appeal in respect of the Director of Public Prosecutions seeking a retrial in the case of Niall Byrne ought therefore to be

allowed and the appeal by David Byrne seeking to restrain his trial should be dismissed. In the result, both trials may proceed.