The Supreme Court dismissed Joseph Kelly’s appeal and affirmed the High Court order, rejecting his challenge to being returned for trial on a charge alleging the unlawful seizure of a van in Dublin 8 on 6 October 2000.
The case arose after a van was taken during an incident at Chamber Court. A plumber and his apprentice later identified Kelly as the man who took it. The first charge, brought in 2001, incorrectly gave the incident date as 6 October 1999. The date was also wrong in the statement of charge served with the book of evidence.
At a preliminary examination in July 2001, the prosecutor sought to amend the charge. District Judge Windle refused. The Supreme Court concluded that the discharge order related to the misstated date. It noted a dispute in affidavits about whether the judge had also questioned the evidence of force, but said the certified District Court order was the basis for deciding the case.
Two days after the discharge, Kelly was charged again, this time with an offence alleging the correct date, 6 October 2000. The witness statements served with that charge were otherwise identical to those in the first book of evidence. At a later preliminary examination, Kelly argued that he had already been in jeopardy on the same evidence. District Judge Anderson rejected the argument and returned him for trial.
The Supreme Court held that the first discharge applied to the offence as charged, which alleged an incident in 1999. The second charge alleged an incident in 2000 and was therefore not the same offence. The Court also rejected the argument that Kelly had been in jeopardy on every other indictable offence that the evidence might support. It said Judge Windle had not considered whether to send Kelly forward under the statutory provision allowing a different offence to be substituted, so there had been no determination concerning another offence.
The Court noted that neither side had challenged the original discharge order on the ground that the judge should have considered the other options available under the legislation. It did not decide that issue. The appeal was dismissed; the order returning Kelly for trial remained in place. The judgment does not state the outcome of any subsequent trial.