The Supreme Court has allowed a third trial of Niall Byrne and David Byrne over the kidnapping of a security firm employee’s family and the robbery of €2.23 million from a cash van, after two juries failed to reach verdicts.
In a judgment delivered on 17 February 2015, Mr Justice Charleton said the third trials could proceed. The court allowed the Director of Public Prosecutions’ appeal against a High Court order barring Niall Byrne’s trial and dismissed David Byrne’s appeal against the High Court’s refusal to bar his trial.
The two men, who the judgment says are unrelated, faced trial together in the Dublin Circuit Criminal Court. The prosecution alleged they were involved in a gang that held the employee’s wife and two children at gunpoint and forced him to help facilitate the robbery. The judgment said the money had not been recovered. The allegations had not been determined by a jury verdict against either man.
Their first trial began in April 2009 and lasted 65 days. Three of the five defendants were convicted, but the jury could not agree on verdicts for Niall and David Byrne. A second trial, beginning in October 2011, lasted 25 days and also ended with a jury disagreement.
The High Court had found a working presumption against a third trial after two jury disagreements, while recognising exceptions. It prohibited Niall Byrne’s trial because it found no new evidence against him, but allowed David Byrne’s trial to proceed because the prosecution might introduce additional evidence.
The Supreme Court held there was no rule requiring fresh evidence before a third trial could be permitted. It said each case required a balance of factors, including the seriousness of the alleged offences, the complexity of the case, the evidence and any unfairness or oppression arising from repeated trials. It described a third trial after two jury disagreements as possible in cases involving unusually grave crimes and complex facts.
The court considered the proposed additional evidence concerning a purple mobile phone associated by the prosecution with David Byrne. It said the evidence appeared capable of adding significantly to the prosecution case, but made no finding on its strength or whether a jury would accept it. Admissibility and contested evidence remained matters for the trial judge.
The ruling addressed only whether the third trials should be prohibited. Both prosecutions were permitted to proceed; the Supreme Court did not determine guilt or innocence.