The Supreme Court has dismissed Darren McCowan’s appeal against the refusal of an order barring further steps in his prosecution, holding that an earlier appeal court order still authorised a retrial on an attempted robbery charge.
McCowan had been convicted in 2000 of assault with intent to rob and attempted robbery, after those alternative charges were added to an indictment that had originally charged robbery. The trial judge directed the jury to acquit him of the original robbery charge. The Court of Criminal Appeal later quashed the two convictions and ordered a retrial for the offences they concerned.
At a retrial listed for April 2002, McCowan was instead arraigned on the original robbery charge. He said he had already been acquitted of it. After the prosecution opened its case, his counsel raised a plea of autrefois acquit, arguing that he had already been found not guilty of that charge. The trial judge discharged the jury and made no further order.
The Director of Public Prosecutions subsequently prepared a new indictment charging attempted robbery. The court was told the DPP had decided not to proceed with the assault-with-intent-to-rob charge.
McCowan argued that withdrawing the robbery charge left no charge remaining on the indictment and meant the criminal proceedings had concluded. The DPP argued that the appeal court’s order authorised retrial only on the two added charges, and that McCowan had not yet been retried on them.
Justice McCracken said the 1928 legislation authorised a retrial for the same offence that was the subject of the quashed conviction. The April 2002 attempt to try McCowan for robbery was mistaken because he had already been acquitted of it. The Supreme Court described the indictment error as administrative, said no abuse of process arose, and noted that McCowan had not alleged prejudice to his interests or rights from the error.
The court held that the authority to retry McCowan on the charges covered by the appeal court’s order had not yet been used and remained valid. It concluded that the proposed attempted robbery indictment and retrial were within that authority, and dismissed the appeal.
The ruling did not determine McCowan’s guilt on the attempted robbery charge. The judgment said it remained for the DPP to decide whether to proceed with an authorised retrial and for the trial court to make any appropriate orders.