The Court of Criminal Appeal refused the Director of Public Prosecutions’ application to retry Comerford and Griffin after quashing their convictions for drug offences. It said the prosecution had created the need for a retrial and that it would not be fair or appropriate to subject the two defendants to a second trial.
The defendants, along with Brennan, had been convicted of offences relating to possession of drugs on 5 July 2011. Their appeals were allowed on 31 March 2014, after they had served two years and eight months in prison. Brennan was released, and no retrial application was made in his case.
The court first considered whether it could hear the prosecution’s application after its order quashing the convictions had been perfected. It concluded the order did not reflect the court’s intention on the day of the appeal: to adjourn the retrial question while prosecution counsel sought instructions from the DPP. The court amended the order to allow the application to be heard.
In reviewing why the convictions were quashed, the court said the trial had been undermined by evidence about a larger quantity of heroin found in a park near where the defendants were arrested. The charges concerned a smaller quantity. The larger cache was introduced shortly before trial through a notice of additional evidence, although the prosecution did not charge the defendants with possessing it.
At trial, the prosecution told the jury it could not link any defendant to the larger cache. The trial judge, however, told the jury an inference could be drawn that the cache had something to do with the events. The appeal court found this left the jury without clarity about how to use highly prejudicial evidence. It held that the resulting convictions were not safe or satisfactory and quashed them.
On the retrial application, the court said the prosecution had chosen not to charge the defendants over the larger quantity or include evidence about it in the original book of evidence. It later introduced that evidence without resolving its significance, creating the confusion that led to the convictions being quashed. The court said the defendants had not contributed to that situation and had objected in time to the additional evidence.
The judgment records the court’s decision to amend the earlier order and hear the retrial application, then concludes that a second trial would be unfair and inappropriate. It does not specify a separate formal order dismissing the application.