Conlon v. Kelly [1999] IEHC 58 (14th December, 1999)

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1. These Judicial Review proceedings arise from the prosecution on indictment of the Applicant on a number of counts of fraudulent conversion contrary to Section 20 (iv) (A) of the Larceny Act, 1916 as amended by Section 9 of the Larceny Act, 1990, together with one count of Larceny. It is alleged by the prosecution that the Applicant, acting in the purported character of a financial advisor, obtained sizeable sums of money from a number of persons in the Galway area for the purported purpose of investing this money with a company in the Isle of Man, and that he did not so invest the money but instead used it for his own purposes. These purposes included the building of a house or hotel in County Clare.

2. The Applicant was first charged with a number of these offences, all of which involved monies given to him by a Mrs Fiona Conneely, on the 12th August, 1996. He was brought before the District Court on that day. On the 19th July, 1996 he was granted bail. A book of evidence was served on the 17th October, 1996 and on the 31st October, 1996 he was sent forward for trial on indictment to Dublin Circuit Criminal Court. He pleaded not guilty and on the 4th February, 1998 was tried on Indictment Bill No. 814/96 before His Honour Judge Groarke and a jury. Following a trial of six days the jury failed to agree on the verdict and were discharged by the trial judge, who directed a new trial. The Applicant was remanded on bail.

3. Prior to the Applicant’s trial in February 1998 he had been on the 8th August, 1997 charged on further similar but distinct counts involving monies alleged to have been paid to him by two other persons. He was remanded on bail on these charges from time to time and eventually on the 5th March, 1998 was sent forward for trial to Dublin Circuit Criminal Court.

4. On the 21st July, 1998 Counsel for the Director of Public Prosecutions made an application to the first named Respondent, Judge Cyril Kelly (as he then was) to join in one bill of indictment the charges on which the Applicant had already been tried and the additional charges on which he had been sent forward for trial. The first named Respondent, having heard submissions from both prosecution and defence Counsel, granted leave to the Director of Public Prosecutions to

5. The matter came into the Court list for mention on 3rd November, 1998 and the first named Respondent made a further Order granting liberty to the prosecution “to consolidate indictments numbers 814/96 and 258/98 and to lodge indictment number 814A/96 in lieu of such indictments”.

6. On the 14th December, 1998 the Applicant sought leave to issue Judicial Review proceedings seeking an Order of Certiorari quashing the Orders of the first named Respondent made on the 21st July, 1998 and the 3rd November, 1998, together with an Order of Prohibition prohibiting the second named Respondent from prosecuting the Applicant on indictment Bill No. 814A. Leave was granted by the learned Geoghegan J. and the prosecution against the Applicant was stayed until the determination of these proceedings.

7. When His Honour Judge Cyril Kelly was appointed as a Judge of the High Court the Applicant caused the name of the Honourable Mr. Justice Esmond Smyth, President of the Circuit Court, to be added as a Respondent to the proceedings lest it be held that Judge Kelly could no longer be a Respondent. However, at the hearing before me it was accepted that there was no necessity for this procedure and that Mr. Justice Smyth had no function in the proceedings.

8. A number of grounds upon which the reliefs of certiorari and prohibition are sought by the Applicant are set out in his originating statement. These were helpfully summarised by Senior Counsel for the Applicant, Mr. Mill-Arden, in the course of his submissions to this Court.

9. The Applicant argues that if there is to be a retrial before a jury, as ordered by His Honour Judge Groarke, he should be retried on the same indictment and no additional counts should be added. He submits that the effect of uniting both sets of counts under Bill No. 814A is prejudicial to him, and that to try him on Bill No. 814A would be in breach of his constitutional rights, in particular his right to equality under Article 40.1, his personal rights under Article 40.3, his right to a good name under Article 40.2 and his right to a fair trial under Article 38. The Applicant also submits that the first named Respondent had no jurisdiction to consolidate the two Bills of Indictment and that in so doing he was wrong in law.

10. A Statement of Grounds of Opposition was filed by the second named Respondent, the Director of Public Prosecutions, on the 4th February, 1999. The second named Respondent in this Statement argues that rather than a “consolidation” of the Bills of Indictment there has been in fact a joinder of charges. The second named Respondent relies on the provisions of the Criminal Justice (Administration) Act, 1924 and submits that the joinder was reasonable in the circumstances, and is in no way prejudicial to the Applicant. If any prejudice should occur this could be countered by proper directions from the trial Judge to the jury. The second named Respondent specifically denies the other claims made by the Applicant with regard to the breach of his constitutional rights and with regard to the jurisdictional and legal basis of the orders of the learned Circuit Judge. Finally, the second named Respondent submits that relief should be denied to the Applicant because he has failed to apply for a separate trial on the different counts pursuant to the Section 6(3) of the Criminal Justice (Administration) Act, 1924.

11. Both written and oral submissions were made to the Court by both parties. Senior Counsel for the Applicant, Mr. Mill-Arden, relied to a considerable extent on the basic principle that what was in question here was a retrial and that a retrial should be a retrial in reality, not a completely different trial on a different set of counts. On a practical level references to the previous trial would probably be made and this would create a confusing situation for the jury. He submitted that the learned Circuit Judge had no power to “consolidate” causes or matters in this way. Order 49 Rule 6 of the Rules of the Superior Courts limited this type of consolidation to the High Court. Order 49 referred to criminal as well as civil matters, since the term “cause” was defined in Order 125 of the Rules of the Superior Courts as including “any action, suit or other original proceeding between a Plaintiff and Defendant and any criminal proceeding”. The Criminal Justice (Administration) Act, 1924 did not make provision for consolidation, but only for joinder, whereas the Orders of Judge Kelly referred only to consolidation.

12. Counsel referred to the English case of Connelly -v- DPP [1964] AC 1254, in which the Court set out a number of principles in regard to second trials on the same or similar indictments. He submitted that it would have been open to the prosecution to have had the Applicant tried on all counts contained in Bill No. 814A at the first trial, since he had been charged with the additional counts in August 1997 and his first trial did not take place until February 1998.

13. Counsel for the Director of Public Prosecutions, Miss McDonagh, argued that, despite the wording of the Circuit Court Order, what had occurred was in fact the joinder of additional counts in a single Bill of Indictment. This was permissible, and indeed was provided for, under Section 5 of the Criminal Justice (Administration) Act, 1924, together with the rules appended to that Act. She submitted that many of the cases to which Counsel for the Applicant had referred, in particular in his written submissions, had dealt with the situation where an Accused had previously been either acquitted or convicted and the principle of autrefois acquit, autrefois convit, or double jeopardy applied. This had no relevance to the instant case where the Applicant had neither been acquitted nor convicted. Indeed it appeared that the Applicant had no objection to a retrial as such; the objection was to the adding of additional counts.

14. Miss McDonagh submitted that there was no evidence before the Court of any prejudice to the Applicant, nor of any attack on his constitutional rights. His trial before the Circuit Court would be a fair trial in accordance with due process. If any potential prejudice arose, it could be dealt with by proper directions from the trial Judge.

15. If, in fact, there was any danger of the Applicant being prejudiced by the joinder of charges, the Applicant could have applied for a separate trial on each indictment pursuant to Section 6(3) of the Criminal Justice (Administration) Act, 1924 which the Applicant had failed to do.

16. In regard to the submission on behalf of the Applicant that all charges could and should have been dealt with at the first trial, Counsel for the second named Respondent drew attention to the facts set out in the Affidavit of William O’Connor, and said that at the date the Applicant was charged in relation to Indictment Bill No. 814/96 no complaints had been received in relation to the charges the subject matter of Indictment Bill No. 258/98 (the additional charges). If the joinder of the charges was to have occurred at a date earlier than it did, the Applicant would have been delayed in relation to obtaining a trial on Indictment Bill No. 814/96.

“S.5 Subject to the provisions of the rules under this Act, charges for more than one felony or for more than one misdemeanour, and charges for both felonies and misdemeanours, may be joined in the same indictment, but where a felony is tried together with any misdemeanour, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies.

S.6(3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.

“The Act of 1924 provides that charges for both felonies and misdemeanours may be joined in the same indictment if they are founded on the same facts or are part of a series of offences of the same or a similar character. Thus a person might be charged in different counts with burglary of a building, robbing one of the occupants, and causing damage to the building and on a further count of entering another building with intent to steal, or he might be charged in different counts with a series of larcenies committed over a period, or on a number of counts alleging that he obtained or attempted to obtain money by false pretences. It was once regarded improper to join any other count with a count of murder, but it has now been held both in Ireland and in England that this is permissible. The Court of Criminal Appeal has, however, disapproved of the undue proliferation of counts....

The joinder of counts may be unsatisfactory from the point of view of the prosecution or from that of the defence. Too many counts, e.g. relating to a series of elaborate frauds, may tend to confuse the jury, and the prosecution may elect to proceed for the time being on some one or more of the counts, probably those which are the most serious, or in respect of which the evidence is the strongest. Conversely, the presentation of number of counts before the same jury may prejudice the Accused. He is presumed to be innocent until his guilt is established, and evidence of his previous bad character is usually inadmissible. A jury having to try an accused person for a number of quite distinctive offences may well be tempted to think that there cannot be smoke without fire, that the Accused would hardly be facing such a variety of charges unless he was guilty of some at least. The Criminal Justice (Administration) Act, 1924 provides that where, before trial or at any stage of the trial, the court is of opinion that the Accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts. In such a case the prosecution will be put to its election as to the charge or charges which are to proceed. The court has discretion in the matter but must exercise it judicially so that the Accused will not be embarrassed.”

20. The learned Circuit Court Judge, therefore, had ample jurisdiction and powers under the 1924 Act to make the Orders which he did. Further, it is accepted beyond doubt that, where a jury has either convicted or acquitted an Accused on some counts in a Bill of Indictment, but has failed to reach agreement on others, a new trial may be directed on the remaining counts. It would be contrary to logic to hold that counts may be subtracted in the case of a second trial but may not be added.

21. I have been referred by Counsel for the Applicant to certain authorities in regard to second trials, and in particular to the case of Connelly -v- Director of Public Prosecutions [1964] AC 1254, a judgment of the House of Lords in which Lord Morris of Borth y Gest set out a number of propositions in regard to second trials. This case is fully discussed in Ryan and Magee at pages 272-4. It is, however, somewhat significant that it is discussed in the context of a paragraph dealing with the pleas of autrefois acquit and autrefois convit. The learned authors quote the opinion of Lord Morris of Borth y Gest who expressed the view that both principle and authority established the following propositions:-

(4) That one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second defence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty;...

(7) That what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called on the later proceedings are the same as those in some earlier proceedings....”

23. The references in Lord Morris’s speech are, however, to retrial on the same offences or similar offences based on the same facts where the Accused had previously been either convicted or acquitted. In the instant case the Accused has neither been acquitted nor convicted on the original counts and makes no objection to a retrial - or more properly a new trial - on these counts. The additional counts are not based on the same offences or on similar offences arising out of the same facts; they are different offences alleged to have been perpetrated on different victims, and with different evidence. The additional offences are alleged to be committed contrary to the same section of the same statute and are all offences of fraudulent conversion, but this does not bring them within the principle set out by Lord Morris in Connelly’s case.

24. I can well understand the possible difficulties which Mr. Mill-Arden fears could arise in the proposed new trial and they are, indeed, set out in the passage from Ryan and Magee which I have quoted above. It seems to me, however, that the remedy for this situation lies in the provisions of Section 6(3) of the 1924 Act - an application to the Court for separate trial. Counsel for the Applicant suggests that it will be particularly difficult for the Applicant to make such an application under Section 6(3), since the learned Judge Kelly has already made Orders joining the additional counts. It is nonetheless a matter which would have to be dealt with de novo by the judge to whom such an application would be made.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Conlon v. Kelly [1999] IEHC 58 (14th December, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/58.html Cite as: [1999] IEHC 58

High Court of Ireland Decisions

Conlon v. Kelly [1999] IEHC 58 (14th December, 1999)