Judgment: 2004-12-03 · Court archive

Appeal court orders retrial after judges failed to consider adjournment request

The Court of Criminal Appeal set aside Mark Desmond’s firearms convictions because the refusal to consider his request for time to obtain new legal representation prevented a fair trial. It did not decide that the request had to be granted.

Court of Criminal Appeal · 18/03

Who, what, where, when and why

Who
  • Mark Desmond
  • McKechnie J
  • Darren Carey
  • Patrick Murray
What

The Court of Criminal Appeal set aside Mark Desmond’s firearms convictions because the refusal to consider his request for time to obtain new legal representation prevented a fair trial. It did not decide that the request had to be granted.

Where

Places mentioned in the report

  • 104 Lally Road
  • Ballyfermot
When

Judgment:

Other dates in the report
  • 18 November 2002

    The firearms were discovered during a Garda search of 104 Lally Road, Ballyfermot, in February 2000, conducted during an investigation into the murders of Darren Carey and Patrick Murray. The prosecution initially brought murder charges as well as firearms charges, but on the scheduled trial date, 18 November 2002, it said it would no longer proceed with the murder charges. The trial went ahead on the firearms charges.

Why

Reasons reported in the judgment

The Court of Criminal Appeal has ordered a retrial after finding that Mark Desmond was denied a fair trial when judges refused to consider his request for an adjournment to obtain new legal representation. The court said it was not deciding whether the request should have been granted; that decision was for a judge to make after considering the relevant arguments.

The Court of Criminal Appeal has ordered a retrial after finding that Mark Desmond was denied a fair trial when judges refused to consider his request for an adjournment to obtain new legal representation. The court said it was not deciding whether the request should have been granted; that decision was for a judge to make after considering the relevant arguments.

Desmond had appealed four firearms convictions. The charges alleged that he possessed four firearms with intent to endanger life or cause serious injury to property, and possessed firearms and ammunition in circumstances giving rise to a reasonable inference that he had no lawful purpose. He was convicted after a trial in the Central Criminal Court.

The firearms were discovered during a Garda search of 104 Lally Road, Ballyfermot, in February 2000, conducted during an investigation into the murders of Darren Carey and Patrick Murray. The prosecution initially brought murder charges as well as firearms charges, but on the scheduled trial date, 18 November 2002, it said it would no longer proceed with the murder charges. The trial went ahead on the firearms charges.

Before a jury was sworn, Desmond discharged his legal team and asked for an adjournment to consult new lawyers. The judge managing the court list said there was a “no adjournment rule” and directed that the case proceed. He described Desmond’s conduct, including his choice of lawyers from Scotland and Northern Ireland, as “playing ducks and drakes with the court”. The trial judge, McKechnie J, later refused a further request for an adjournment, relying in part on the previous day’s decision and comments.

The appeal court held that every adjournment request must be considered on its own merits. A judge must hear and weigh the arguments and relevant circumstances; there could be no “no adjournment rule” in the Central Criminal Court. The court said the list judge had announced such a rule before the application was made and had not considered the particular facts or submissions. It concluded that neither judge had properly exercised discretion on the request.

The appeal court also said it was Desmond’s absolute right to instruct any lawyer entitled to appear in Irish courts, regardless of where that lawyer normally practised. It noted that the jury had become aware during the adjournment application that Desmond had been charged with murder, which may have influenced them against him.

The court rejected Desmond’s other appeal grounds, concerning the direction on intent, the evidence of intent and the amended indictment. It granted leave to appeal on the adjournment ground and ordered a retrial. It stressed that its decision did not mean the adjournment had to be granted, and said the application might have been refused after proper consideration.

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